Court File and Parties

COURT FILE NO.: CR-15-4953 DATE: 2017-02-14

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Ms. Malkovich and Ms. Gzik, Crown Counsel for Her Majesty the Queen

- and -

BRANDON BARREIRA, JOSHUA BARREIRA, CHAD DAVIDSON and LOUIS REBELO Ms. Goldlist, Defence Counsel for Brandon Barreira Mr. Zaduk and Ms. Page, Defence Counsel for Joshua Barreira Mr. White and Ms. Audet, Defence Counsel for Chad Davidson Mr. Dorsz, Defence Counsel for Louis Rebelo

HEARD: at Hamilton February 13, 2017

REASONS FOR RULING – LEANEY APPLICATION REGARDING IDENTIFICATION OF ACCUSED CHAD DAVIDSON ON VIDEO

The Honourable Mr. Justice Skarica

INTRODUCTION

[1] Tyler Johnson was shot in the heart at close range on November 30th, 2013 in downtown Hamilton. Surveillance video(s) show the shooter (a man wearing a red hood) approaching the victim Mr. Johnson with a gun in his hand and then shooting Mr. Johnson, who ultimately died from his injuries. The Crown wishes to introduce evidence at trial from two witnesses who can identify the shooter on the video as the accused Chad Johnson.

ISSUES

[2] Should the Crown witnesses Krystal Dore and Danielle Waun give identification evidence that Chad Davidson is the shooter (the man wearing the red hood) on the video?

[3] Should the concession by counsel at the preliminary hearing, that committal on a first degree murder charge was no longer an issue regarding Mr. Davidson, after the admission at the preliminary hearing of the identification evidence by Ms. Dore and Ms. Waun, form part of my consideration of the admissibility of the identification evidence by those two witnesses at this trial?

ISSUE #1 – CROWN APPLICATION ALLOWING WITNESSES TO GIVE IDENTIFICATION EVIDENCE

FACTS

[4] Chad Davidson and the three other accused are charged with the first degree murder of Tyler Johnson on November 30, 2013.

[5] As indicated in a previous ruling, my review, of the materials filed on this motion and other motions to be decided before me, indicates the Crown will adduce a videotape which allegedly shows the victim Mr. Johnson being shot at close range by the accused Mr. Davidson.

[6] I understand that the Crown’s theory is that Mr. Davidson shot Mr. Johnson and was aided and abetted by the other three accused in a planned and deliberate murder.

[7] One of the accused, Joshua Barreira, has given three statements and the latter two statements indicate that Chad Davidson is the shooter and the other three accused charged were innocent bystanders who happened to be merely in the wrong place at the wrong time. These statements are only admissible against Mr. Barreira and not against Mr. Davidson.

[8] The Crown adduced at the preliminary hearing a variety of surveillance videotapes and Krystal Dore and Danielle Waun testified that the person alleged to be the shooter (the man wearing the red hood) is the accused Chad Davidson.

THE EVIDENCE OF THE IDENTIFICATION WITNESS KRYSTAL DORE

(A) KRYSTAL DORE’S TESTIMONY AT PRELIMINARY HEARING

[9] Krystal Dore (Krystal) is the sister of Ashely Dore who is the girlfriend/wife of Chad Davidson.

[10] Krystal testified that she has known Mr. Davidson for about a year and a half. Her involvement with him includes the following:

1. In Christmas of 2013, Mr. Davidson and Ashely had Christmas dinner with Krystal and they all stayed overnight at Krystal and Ashley’s parents’ house.
2. Over the past year and a half, Krystal has seen Mr. Davidson quite a few times at her parents’ house.
3. Krystal saw a videotape of the shooting on the internet (Exhibit L4) and she recognized Chad Davidson because of his clothing i.e. red hooded sweatshirt she had seen him wear before. She told her sister on the phone that she recognized him and Ashley shushed her on the phone to stop talking. This occurred in or around February of 2014.
4. In August of 2014, Krystal attended at the police station and saw the online video (contained in Exhibit L4) and similar but different videotape (Exhibit L4) from the internet video and again recognized Chad Davidson on the videotape. Krystal recognized Chad’s clothes, his shoes and his walk. Krystal described his walk as a swagger and that it is a familiar walk.
5. A video (Exhibit L4) was played at the preliminary hearing and it was paused at the 4:09 a.m. point. Krystal testified that she recognized Chad Davidson from the red hooded sweatshirt and his side profile. She thinks Chad is 34. Krystal knows that Chad has tattoos and she thinks they are on his arms and neck and hands. She does not know the meaning of the tattoos. She recognized Chad Davidson in the prisoner dock.
6. In cross-examination, Krystal testified that she met Chad Davidson in 2012 when he came over to her parents’ home for dinner in Puslinch. She did not stay overnight that first time. She saw Chad Davidson on and off after that first time.
7. She has seen Chad Davidson at other times and they have been outside sitting on the patio. Between the first time and Christmas of 2013, Krystal saw him more than four times either at her home or at her parents’ home.
8. Chad had brought Krystal’s son to her place and Chad came up to her apartment and socialized briefly. She watched him leave.
9. Defence counsel showed Krystal the video (Exhibit L4) and referred to 4:07:36 a.m. on the screen and Krystal indicated that she could see the red hood on his sweatshirt under his jacket. The video was played further and Krystal indicated that the red hood has no decals, logos or trim that would be distinctive. At 4.09 a.m., there is nothing of the body that’s visible at that point.
10. Krystal recognized his shoes which were white and black high tops. The front was black and the sides were white or the insoles were white.
11. Krystal indicated that when she saw the Crime Stoppers video on the internet, she was guessing that it was Chad Davidson. Krystal did not talk to the police until August because she was guessing and she did not need the stress and did not want her M.S. condition to flare up. However, once the police approached her, she was prepared to assist.
12. Krystal testified that the man wearing the red hood had a familiar walk. It looked like Chad’s walk. Chad had a swagger, “it’s his shoulders, it’s the mannerisms.” There is no distinctive limp or dragging of a foot or distinctive walking pattern beyond a swagger.

(B) KRYSTAL DORE’S KGB STATEMENT

[11] On August 27, 2014, Krystal Dore provided a “KGB” statement to the Hamilton police.

[12] At pages 39-45 of the statement, Ms. Dore is shown videos on a computer and indicates at page 39 that she thinks that Chad Davidson is the man wearing the red hoodie with the black pants and does not recognize anyone else.

[13] At page 40, she is shown the video that she saw online (contained in Exhibit L4) and points out Chad in the red hoodie and Krystal asks to return to the video that wasn’t released online (contained in Exhibit L4). Krystal indicates that she can’t see his face but thinks that it is him because of the walk and clothes and the face does look like him. She indicates, “I mean, I’ve seen him a thousand times… the nose.”

[14] Krystal is referred to the other online video (Exhibit L4) and indicates it looks like the same person there – the clothes, the swagger, and the walk. She described it as “thug”.

[15] Krystal indicates that he has tattoos on his hands. He has tattoos on his neck and she doesn’t want to say flames but they are black. He has tattoos on his hands, knuckles and wrist although she is not 100 per cent sure. Tabs 4 and 5 of the Crown’s discreditable conduct application brief show that Chad Davidson is heavily tattooed with black tattoos on his neck and tattoos on his hands and wrist.

[16] Krystal is shown more video footage (channel 13 of Exhibit L4) and at page 44 thinks she sees Chad due to the face looking like him – the bone structure and the nose although she can’t say 100 per cent because it is not a clear shot but it looks like him.

[17] At pages 61-62 of her statement, Krystal she is shown more video (channel 15 of Exhibit L4) and she thinks that it is Chad as he is wearing his favorite color red and she recognizes Chad’s walk as she has been around him “long enough to know that”.

THE EVIDENCE OF THE IDENTIFICATION WITNESS DANIELLE WAUN

(C) DANIELLE WAUN’S TESTIMONY AT PRELIMINARY HEARING

[18] Danielle Waun (Danielle) is a personal support worker (PSW) and had a client close to Ashely Dore’s home at Towercrest.

[19] Danielle met Chad Davidson after she returned from maternity leave in 2012. She would work at Towercrest three times a week and saw him often there.

[20] About a week after November of 2013, Ashley, Chad Davidson, Joshua Barreira and Jennifer Dagenais came to her house at 41 McKay and the four visitors stayed overnight.

[21] In the morning, Joshua Barreira and his girlfriend Jen had a discussion about getting married as husbands and wives can’t testify against each other and they did not want to do it but Ashely said that it was something they had to do. Chad Davidson was in agreement with it.

[22] Before the arrests were made, Ashley told Danielle to google Tyler Johnson’s name. She did and just saw a written article about the incident but did not view any videos. The police attended at her home on July 23, 2014.

[23] On July 29, 2014, Danielle attended at the police station on July 29, 2014 and she watched a video. She identified Chad from the video by his mannerisms, the way he walked, the way he wore his clothes. She recognized the clothes were red and she saw Chad wearing that color before.

[24] A video was played (Exhibit L4) and at the 4.07 a.m. mark, she recognized Chad Davidson as the man in the red hoodie.

[25] In cross-examination, Danielle indicated she helped Chad hide his drug use from Ashley Dore.

[26] Danielle testified in cross-examination by Ms. Edward, that she had talked face to face to Chad Davidson dozens of times. She visited them in their house and spoke to them and she saw Chad walk his boxer dog. Other than that, she saw him in passing.

[27] On one occasion, Danielle went on a two hour shopping trip, at Jackson Square, with just Chad to buy something for Ashley but he did not buy anything. They may have stopped somewhere to eat.

[28] Danielle was shown a portion of a video and indicated that there was nothing distinctive about the footwear, black pants, jacket or red hood that the man was wearing. Danielle indicated that she saw Chad wear red often but anybody could wear it as red is not an uncommon color.

(D) DANIELLE WAUN’S KGB STATEMENT

[29] Danielle Waun provided a “KGB” statement to the police on July 29, 2014.

[30] In the statement, Ms. Waun indicates that at the end of November. Chad, Ashley, Josh and his girlfriend spent the night at her house and she overheard the argument about Josh and his girlfriend getting married and Ashley and Chad said that is what they had to do so the girls won’t get into trouble and would not have to testify.

[31] A video is shown to Danielle (Exhibit L4) and she indicates, “Chad is in the red, I can already tell.” Chad was wearing a red hoodie. The guy in the red hoodie was Chad.

[32] She can’t say if the guy in the black hoodie is Josh but she can’t see his face. However, she noticed that he had his arm in his pocket and she remembers there was something wrong with his arm and he always had it up like that when he was at her house.

THE EVIDENCE OF THE VIDEOS

[33] The Crown played the videos during the voir dire on this application.

[34] Exhibit L4 is a series of three videotapes from the Big Bee store. The videos are an hour later than the actual time. The videos start at 4.07 a.m. and run to 4.09 a.m. approximately. The real time would be from approximately 3.07 a.m. to 3.09 a.m. Exhibit L4 – channel 15 contains a good quality color video and the man in the red hoodie, walking amongst a group of three men, can be seen fairly clearly on the videotape.

[35] Exhibit L5 is series of two videotapes from the Vida La Pita starting at approximately 4.09 a.m. (really 3.09 a.m.). On the second videotape, the man with the red hoodie can be seen to have a gun in his hand as he walks toward Tyler Johnson with a group of men and an altercation then appears to ensue.

[36] Exhibit L6 is a videotape from inside the Tim Horton’s store. It is 10 minutes fast and runs from 3.06 a.m. (really 2.56 a.m.) and onward to 3.16 a.m. (really 3.06 a.m.).

[37] My impression from looking at these videos is that I would have no difficulty in recognizing the accused Brandon Barreira on the videos but would need assistance regarding the others as they are only seen briefly. The persons alleged to be Joshua Barreira and Chad Davidson are wearing hoodies and I would need assistance regarding identification of those two individuals due to the clothing they are wearing.

[38] The accused Brandon Barreira and Louis Rebelo admit they are shown on the videotapes and their admissions pursuant to s. 655 of the Criminal Code were filed at the voir dire as Exhibits L1 and L2 respectively.

LAW

[39] The leading case in this area is R. v. Leaney, [1989] 2 S.C.R. 393 where the Supreme Court of Canada held, at paras. 20, 28, 33, that a voir dire should be held to determine whether extrinsic evidence can be given about the identity of individuals that appear on a video tape – see also R. v. John, 2010 ONSC 6085 at para. 18.

[40] As I have indicated, Chad Davidson cannot be identified easily on the video tapes. I could not do so and I believe that neither can the jury. Accordingly, witnesses who can identify the accused Chad Davidson on the video tape may be called by the Crown if the Crown can satisfy the Leaney/Brown “prior acquaintance/better position test” – see Leaney and John at paras. 17-18.

[41] In R. v. Brown, 215 CCC (3d) 330, [2006] O.J. No. 5077 (C.A.), Justice Rosenberg referring to Leaney held at para. 39:

As to the other concerns that amicus raises with respect to the recognition witnesses, I am satisfied that the trial judge was correct to admit the evidence. In R. v. Leaney (1989), 50 C.C.C. (3d) 289 at 303, the Supreme Court of Canada held that this type of non-expert opinion evidence 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. All the witnesses whose testimony was admitted by the trial judge fell into this category. For example, one witness was the appellant's aunt and had known him for years. Another witness had been his partner for some time. The recognition evidence was also important because the appellant had changed his appearance since the robbery, five years earlier, and the recognition witnesses were familiar with the appellant's appearance at times close to the robbery. The various witnesses explained why they recognized the appellant as the man in the videotape. The jury was thus in a position to evaluate the probative value of their evidence.

[42] The Ontario Court of Appeal revisited Leaney and Brown in R. v. Berhe, [2012] O.J. No. 5029 (C.A.). The Leaney/Brown test is characterized as the “prior acquaintance/better position” test. The Court of Appeal laid down the parameters of what is and what is not required to meet this test at paras. 19-23:

19 First, although the Harradence criteria were not expressly rejected in Leaney or Brown, more importantly, they were not adopted either. As far as I am aware, no appellate court, including the Alberta Court of Appeal, has adopted or followed the Harradence dissent (requiring sufficient prior familiarity with the accused's unique features to enable the witness to identify the accused's idiosyncrasies as portrayed in the videotape) in the 25 years since Leaney was decided in that Court.

20 Secondly, I am satisfied that the test as set out by the Supreme Court in Leaney and articulated by this Court in Brown, has the advantage of flexibility while at the same time providing sufficient criteria - familiarity with the person identified and being in a better position than the court to make the identification - to enable the court to perform its gate-keeping function for purposes of determining threshold admissibility. At the voir dire, the judge may or may not conclude that the potential witness is sufficiently familiar with the person whose identity is in question to be in a better position than the trier of fact to assist in making the identification. What weight is to be given to the evidence ultimately is a different consideration.

21 I do not see this as being inconsistent with the underlying principles of opinion and identification evidence, namely that opinion evidence is generally inadmissible "because it is a fundamental principle of our system of justice that it is up to the trier of fact to draw inferences from the evidence and to form his or her opinions on the issues in the case": R. v. K.(A.) (1999), 45 O.R. (3d) 641 (C.A.), at para. 71. Nor do I see it as inconsistent with the view that "there must be some basis for the opinion before it can be given any weight": see R. v. Cuming, 158 C.C.C. (3d) 433 (C.A.), at para. 21. Both of these benchmarks are well established. 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 1 - 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.

22 In my view, however, it is going beyond what is necessary for threshold admissibility to add another layer to the test requiring the recognition evidence witness to show that he or she can point to some unique identifiable feature or idiosyncrasy of the person to be identified. Such concerns are better resolved in determining the ultimate reliability of the evidence. There are many ordinary people who do not have any particular identifiable features or idiosyncrasies differentiating them from the normal crowd; people familiar with them may well be able to identify their photograph, however. In that respect, I think the following comment by Holmes J. in R. v. Panghali, 2010 BCSC 1710, [2010] B.C.J. No. 2729, at para. 42, is apt:

Common experience teaches that people have vastly different abilities to identify and articulate the particular features of the people in their lives that they know, recognize, and distinguish on a regular basis. Where a witness has but little acquaintanceship with the accused, his or her recognition evidence may be of little value unless the witness can explain its basis in some considerable detail. But at the other end of the spectrum, the bare conclusory recognition evidence of a person long and closely familiar with the accused may have substantial value, even where the witness does not articulate the particular features or idiosyncrasies that underlie the recognition.

23 Arguably, then, the testimony of Officer Welk may have met the appropriate test for the admissibility of this type of recognition evidence - what I have referred to as the "prior acquaintance/better position" test.

[43] Justice Trafford in R. v. Brown [1999] O.J. No. 4865 (S.C.J) at paragraph 7 noted that the cross-examination of recognition witnesses is notoriously difficult and there is accordingly, “real value in requiring at this stage of the trial an articulated basis of the opinion of the recognition witness plus a corresponding identifiable feature of the perpetrators on the video tape.”

[44] Justice Code in R. v. John, 2010 ONSC 6085, [2010] O.J. No. 4738 (S.C.J.) indicated at para. 23:

I am satisfied that if a lay opinion witness could offer little more than a bare conclusory opinion that the accused is the man depicted in the photo or video of the crime, without providing any underlying basis for the opinion, then the evidence would be of little or no probative value and would be prejudicial because of the cross-examiner's inability to test its weight. As Rosenberg J.A. put it in Brown, supra, "the various witnesses explained why they recognized the appellant as the man in the videotape. The jury was thus in a position to evaluate the probative value of their evidence".

[45] In John, the basis of the three identification witnesses were (1) “his demeanour and his mannerisms in the past and his overall descriptions in the video and photo” – see para. 27 and (2) “his nose, chin and facial structure and the way his jaw or lower lip would protrude when speaking or breathing heavily” – see para. 28 and (3) “the man’s jaw line, moustache and facial features and the witness immediately said to herself, “that is Curt”, although she agreed she was not 100 per cent sure and agreed that her certainty was 5 out of 10” – see paras. 32-34.

[46] The Crown conceded in John that it would not be safe to convict on the basis of the three recognition witnesses standing alone. Justice Code held that there were frailties in all three witnesses’ recognition evidence but held that the three lay opinions were entitled to some weight and the fact that each witness “independently reached the same conclusion may be what gives their evidence its greatest weight” – see paras. 35-37.

[47] Accordingly, the threshold test for my determination is:

(1) Regarding the “prior acquaintance” branch – is the potential witness sufficiently familiar with the person sought to be identified to have “some basis” for the opinion or an “articulated basis” for the opinion? And if yes:

(2) Regarding the “better position” branch – does the potential witness have some advantage that can shed light on the evidence in question, thereby ensuring that the evidence is admissible only because it is helpful to the trier of fact? Or as Justice Code put it in John or Justice Trafford in Brown: “Is there some underlying basis or articulated basis for the opinion of the identification witness that the “accused is the man”?

[48] What weight is to be given to the evidence is ultimately up to the trier of fact – see Berhe at para. 20.

ANALYSIS

KRYSTAL DORE

[49] Regarding the witness Krystal Dore (Krystal), she has known Chad Davidson for approximately one year and a half. In Christmas of 2013, Krystal had dinner with Ashley Dore (Krystal’s sister) and Chad Davidson and they spent the night at the Dore’s parents’ home. Krystal has seen Chad Davidson quite a few times at her parents’ house over the past year and a half. Between meeting him for the first time in 2012 and Christmas of 2013, she saw Chad Davidson at either her parents’ home or her home more than four times. She has seen Chad outside on the patio. Chad Davidson brought Krystal’s son to her place and socialized briefly. She watched Chad leave.

[50] In Krystal’s KGB statement given in August of 2014, she indicated that Chad has tattoos on his hands, knuckles and wrist although she is not 100 per cent sure. She described tattoos on his neck and says they are black. Tabs 4 and 5 of the Crown’s discreditable conduct application brief show that Chad Davidson is heavily tattooed with black tattoos on his neck and tattoos on his hands and wrist.

[51] Accordingly, I am satisfied that Krystal is more than a casual acquaintance of Chad Davidson and has sufficient familiarity with Chad Davidson to permit her to have some basis to identify Chad Davidson in the video.

[52] Regarding the basis for her opinion, Krystal, in her KGB statement, indicated that she could not see his face on the video but she thinks it is him because of the walk and clothes and the face does look like him. She indicates, “I mean I’ve seen him a thousand times...the nose.” She also indicated that the man in another video looks like the same person – the clothes, the swagger and walk that she describes as “thug.” She later indicates that the bone structure of his face and nose look like him although she is not 100 per cent but it looks like him. She is shown more video later and indicates that she recognizes Chad’s walk as she has been around him “long enough to know that.”

[53] In examination in-chief at the preliminary hearing, she testified she recognized Chad Davidson in the video from the red hooded sweatshirt he has worn before, his shoes and his walk that is a swagger and is a familiar walk and his side profile.

[54] In cross-examination, Krystal conceded that there was nothing that was distinctive about the red hood on his sweatshirt under his jacket. The shoes were black and white high tops and she did not indicate anything distinctive about the shoes, in my opinion. Krystal had earlier seen a portion of the videos on Crime Stoppers and she guessed at that time it was Chad Davidson but did not talk to the police until August of 2014 due to her guessing and her stress. Krystal indicated that the man wearing a red hood had a familiar walk. It looked like Chad’s walk. Chad had a swagger, “it’s his shoulders, it’s the mannerisms.” There was no distinctive limp or dragging of a foot or distinctive walking pattern beyond a swagger.

DANIELLE WAUN

[55] In Danielle Waun’s (Danielle) KGB statement provided on July 29, 2014, she was shown a video and once the video was shown, she immediately indicated that, “Chad is in the red, I can already tell.” The guy in the red hoodie was Chad.

[56] At the preliminary hearing, Danielle testified that she met Chad Davidson after she returned from maternity leave in 2012. She would work at Towercrest three times a week and would see Chad Davidson often at or near his residence with Ashley Dore at Towercrest.

[57] In cross-examination, Danielle testified that she helped Chad Davidson hide his drug use from Ashley and that she had talked to Chad Davidson dozens of times. She visited Chad and Ashely at their house and saw Chad walk his dog and she saw him in passing. She went on a two hour shopping trip alone with Chad Davidson.

[58] In or around November of 2013, Chad Davidson and Ashley and Joshua Barreira and Jennifer Dagenais stayed overnight at Danielle’s house in Dundas just before Chad Davidson’s marriage to Ashley Dore.

[59] Again, I am satisfied that Danielle is more than a casual acquaintance of Chad Davidson and has sufficient familiarity with Chad Davidson to permit her to have some basis to identify Chad Davidson in the video.

[60] Regarding the basis for her opinion that Chad Davidson is the person on the video, she immediately picked him out of the video once they were shown to her during her KGB statement. She had seen no other videos prior to that point.

[61] At the preliminary hearing, Danielle testified that she picked out Chad Davidson from the video by his mannerisms, the way he walked and the way he wore his clothes. She recognized that his clothes were red and had seen Chad wear red before and she recognized the man in the red hoodie as Chad Davidson.

[62] In cross-examination, Danielle indicated that there was nothing distinctive about the footwear, jacket, black pants or red hood that the man in the video was wearing. Chad liked to wear red but anybody can wear red as it is not an uncommon color.

CONCLUSION REGARDING ISSUE #1 – CROWN APPLICATION TO ALLOW WITNESSES TO GIVE IDENTIFICATION EVIDENCE

[63] I find that both Krystal Dore and Danielle Waun had sufficient familiarity to meet the requirements of the first stage of the “prior acquaintance/better position” test.

[64] Both Krystal Dore and Danielle Waun testified that Chad liked to wear red but there was nothing distinctive about the shoes or the red hoodie that the man in the video was wearing. I would find that this evidence of clothing would not provide a sufficient or articulated basis for the identification of Chad Davidson on its own. But there is more evidence to consider.

[65] Krystal Dore testified that she recognized Chad Davidson because of his familiar walk. She described it as a swagger and indicated that “it’s his shoulders, it’s the mannerisms”. There was no distinctive limp or foot dragging or distinctive walking pattern beyond a swagger. In her KGB statement, she described the walk as “thug” and the face does look like him, “I mean I’ve seen it a thousand times… the nose.” She recognized his walk as she has been around him “long enough to know that.”

[66] Danielle Waun immediately recognized Chad Davidson when she saw the video in her KGB statement. She identified Chad Davidson at the preliminary hearing from the video by his mannerisms, the way he walked and the way he wore his clothes.

[67] Accordingly, both Krystal Dore and Danielle Waun, independent of each other, recognized Chad Davidson by his mannerisms and the way he walked.

[68] Defence counsel wishes me to consider that no identifiable features were pointed out by the two witnesses. However, Justice Rosenberg clearly indicates in Brown at para. 22 that is not the threshold test. Counsel for the defence also asked me to consider “expectation bias” but again that is not part of the test and is a matter of weight to be considered by the jury. Krystal Dore guessed it was Chad when she saw the internet video but at the police station she saw more video and the quality of what she saw on the internet was not explored at the preliminary hearing.

[69] In my opinion, Krystal Dore and Danielle Waun provide recognition evidence that provides an articulable basis or some basis that is at least as good or better than what was sufficient to meet the “prior acquaintance/better position” test in Justice Code’s case in John.

[70] Each witness, Krystal Dore and Danielle Waun independently reached the same conclusion that Chad Davidson was the man in the video. Krystal Dore and Danielle Waun both independently articulated a similar basis – i.e. they recognized him from the mannerisms and the way he walked in addition to the clothing.

[71] Accordingly, these witnesses who are familiar with the accused are in a better position to identify the accused than the jury and their evidence is admissible as it is helpful to the trier of fact.

[72] I find that the probative value of this identification evidence exceeds any prejudicial effect in the circumstances of this case.

[73] The Crown has satisfied the onus that is on it and has established that the two witnesses, Krystal Dore and Danielle Waun have met the criteria for the “prior acquaintance/better position” test. The evidence of Krystal Dore and Danielle Waun, regarding their identification of Chad Davidson on the videos entered as exhibits in this voir dire, is admissible at this trial.

ISSUE #2 – COUNSEL’S CONCESSION AT PRELIMINARY HEARING

[74] After Krystal Dore and Danielle Waun testified at the preliminary hearing and provided their identification evidence identifying Mr. Davidson on the video, (I note that no voir dire appears to have been held), Ms. Edward, counsel for Mr. Davidson, took the position that she was no longer taking any issue respecting committal of Mr. Davidson.

[75] The Crown in support of its application relied upon this concession as somehow relevant to this application.

[76] It is clear that the preliminary hearing serves two functions: (1) to determine if there is sufficient evidence to commit an accused to trial and (2) to provide a disclosure forum for the accused to discover the Crown’s case – see R. v. Skogman, [1984] 2 S.C.R. 93.

[77] Section 536.4 of the Criminal Code encourages the parties to consider any matters that would promote a fair and expeditious inquiry.

[78] Accordingly, not only was Ms. Edward’s concession consistent with the spirit of the Criminal Code, it is a practice that it is to be condoned and encouraged particularly in light of the Supreme Court of Canada’s decision in R. v. Jordan, 2016 SCC 27 and limited judicial resources.

[79] I know of no authority and was provided with none that would allow a concession made at the preliminary inquiry to be transformed into an admission at trial/pretrial motion against the accused’s interest absent a clear and unequivocal intent to make a formal admission at subsequent trial proceedings.

[80] Accordingly, Ms. Edward’s concession at the preliminary inquiry has absolutely no probative value of any kind regarding any issue at this trial. To hold otherwise, would be to discourage defence counsel to make any concessions at preliminary inquiries, would provide a trap for unwary counsel and would inevitably and unnecessarily force counsel to refuse to make any concessions at all in order to avoiding prejudicing their clients at the subsequent trial.

CONCLUSION REGARDING ISSUE #2 – COUNSEL’S CONCESSION AT PRELIMINARY HEARING

[81] Absent a clear and unequivocal intent to provide a formal admission at subsequent trial proceedings, counsel’s concessions at a preliminary inquiry have no probative value regarding any issue at the subsequent trial.

ORDER

The identification evidence of Krystal Dore and Danielle Waun regarding the videos tendered by the Crown at this trial and their identification evidence of Chad Davidson appearing in those videos is admissible at this trial.

Skarica J. Released: February 14, 2017