COURT FILE NO.: 168/16 DATE: 2017/03/02

INFORMATION CONTAINED HEREIN IS PROHIBITED FROM PUBLICATION BY ORDER OF THE HONOURABLE JUSTICE J. R. HENDERSON ON JANUARY 9, 2017 UNTIL FURTHER ORDER

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen Crown

AND:

Jeremy Edward Gough Accused

Counsel: T. Shuster and J. Strecansky, for the Crown B. Walker and J. Lefurgey, for the Accused

Heard: January 17 & 18, 2017 Before: The Honourable Justice J. R. Henderson

PRE-TRIAL MOTION #2

POWERPOINT PRESENTATIONS

INTRODUCTION

[1] The accused, Jeremy Gough (“Gough”), is charged with the first degree murder of his estranged common-law spouse, Jessica Scanlon (“Scanlon”). It is alleged that on the morning of February 23, 2015, Gough attended Scanlon’s residence at 13 Chetwood Street, St. Catharines, killed Scanlon, and left her body in the basement of the residence. At the time, Gough had been living at his brother’s house at 208 Geneva Street, St. Catharines.

[2] At issue in this pre-trial motion is the admissibility of, and testimony about, two PowerPoint presentations that were prepared by Sergeant David Pierini (“Pierini”). These PowerPoint presentations contain video clips that were selected from recordings made on February 23, 2015, by closed circuit video cameras that were located at various intersections, businesses, and residences throughout the City of St. Catharines.

[3] Pierini testified that, in order to create the PowerPoint presentations, he viewed hundreds of hours of raw footage from these closed circuit video cameras, and extracted the video clips that he believed to be relevant to this case. Pierini also extracted still photographs, some of which he enhanced, from the selected video clips. Then, Pierini organized the selected video clips and photographs into the PowerPoint presentations.

[4] There are two aspects to the PowerPoint presentations. First, the PowerPoint presentations contain video clips of an Oldsmobile motor vehicle that Pierini believes matched the characteristics of a brown 1997 Oldsmobile Cutlass Supreme (“the Winstanley Oldsmobile”) that was owned by Gough’s mother, Susan Winstanley. Second, the PowerPoint presentations contain video clips of an unidentified male person who can be seen walking while carrying a backpack in the vicinity of Chetwood Street on the morning of February 23, 2015.

THE POSITIONS OF THE PARTIES

[5] The Crown submits that the PowerPoint presentations are relevant to the Crown’s theory as to the movements and actions of Gough during the morning of Scanlon’s murder. Defence counsel does not object to all of the PowerPoint presentations as the defence acknowledges that a large portion of the PowerPoint presentations contains evidence that is relevant to the Crown’s case.

[6] However, defence counsel submits that Pierini’s oral testimony should be limited, and that certain parts of the PowerPoint presentations should be excluded. Specifically, defence counsel submits that Pierini’s opinion evidence that the vehicle shown in the video clips is the Winstanley Oldsmobile, and that a vehicle shown in one video clip is the same as a vehicle shown in another video clip, is not admissible. Further, defence counsel submits that the video clips of the unidentified male shown walking in the neighbourhood of Chetwood Street is prejudicial evidence that should not be admitted.

[7] The Crown submits that Pierini’s opinion evidence with respect to the Winstanley Oldsmobile and the vehicles shown in the video clips is admissible as lay opinion evidence. The Crown further submits that the video clips of the unidentified male constitute relevant circumstantial evidence.

[8] It is conceded by defence counsel that Pierini may testify as to the general characteristics of a 1997 Oldsmobile Cutlass Supreme, the characteristics of the Winstanley Oldsmobile, the unique features of the Winstanley Oldsmobile, and the direction of travel and apparent speeds of the vehicles shown in the video clips.

ANALYSIS

[9] I find that the PowerPoint presentations distill a vast amount of raw video footage into a short series of relevant material. I also find that the PowerPoint presentations promote trial efficiency, organize the evidence for the jurors, and make the evidence more easily understood. Therefore, in accordance with the submissions of counsel, and the decisions in R. v. Hamilton, 2011 ONCA 399, [2011] O.J. No. 2306, and R. v. Kanagasivam, 2016 ONSC 1932, [2016] O.J. No. 1932, I find that the two PowerPoint presentations are admissible, subject to the restrictions set out hereinafter.

[10] Regarding opinion evidence, our courts have repeatedly permitted non-expert witnesses to provide lay opinion evidence with respect to matters of common knowledge and experience. It is well established that a police officer, or any lay person, is permitted to provide lay opinion evidence as a way of expressing a set of complex factual observations.

[11] In the present case, it is the position of the Crown that Pierini’s opinion evidence that the vehicle shown in the video clips is the Winstanley vehicle is simply a way of summarizing Pierini’s factual observations. That is, the Crown submits that Pierini is in effect stating that there are a number of characteristics about the vehicle shown in the video clips that cause him to believe that it is the Winstanley Oldsmobile.

[12] The seminal case on this point is R. v. Graat, [1982] 2 S.C.R. 819, a case in which the Supreme Court of Canada confirmed the admissibility of the opinion evidence of two police officers who had testified that the accused appeared to be impaired by alcohol.

[13] Also in the Graat case, the court provided a list of subjects upon which a non-expert could give a lay opinion. That list included the identification of handwriting; a person’s apparent age; whether a person was distressed, angry, aggressive, or emotional; whether something appeared to be new or old or worn or shabby; and estimates of speeds and distances.

[14] I note that the rationale for the Graat decision, and the cases that follow Graat, is that it is difficult to draw a distinction between fact and opinion. At page 835 of Graat, the court wrote,

Except for the sake of convenience there is little, if any, virtue, in any distinction resting on the tenuous, and frequently false, antithesis between fact and opinion. The line between “fact” and “opinion” is not clear.

[15] Further, at page 837 of Graat, the court adopted a statement from Professor Cross as to the admissibility of non-expert opinion evidence as follows:

When, in the words of an American judge, “the facts from which a witness received an impression were too evanescent in their nature to be recollected, or too complicated to be separately and distinctly narrated”, a witness may state his opinion or impression. He was better equipped than the jury to form it, and it is impossible for him to convey an adequate idea of the premises on which he acted to the jury.

[16] That being said, in the present case, unlike the Graat case, I find that the line between fact and opinion is very clear. Pierini’s factual observations include his testimony about the characteristics of the Winstanley Oldsmobile, such as the shape, size, and colour of the vehicle, the design of the wheel covers, the accessible parking sticker in the front window, and the various stickers in the rear window. Further, Pierini’s factual observations also include his testimony about the characteristics of the vehicles that can be seen in the video clips.

[17] I find that these factual observations can easily be expressed by Pierini without testimony that includes lay opinion evidence. That is, it is not necessary for Pierini to express an opinion in order to convey his factual observations to the jury; it is possible for Pierini to testify as to his factual observations in a simple straightforward manner. Moreover, I find that Pierini is in no better position than the jurors to observe and compare the characteristics of the Winstanley Oldsmobile and the characteristics of the vehicles shown in the video clips.

[18] Ultimately, it is for the jurors to decide if the Winstanley Oldsmobile is the vehicle shown in the video clips, or if a vehicle shown in one video clip is the same vehicle shown in another video clip.

[19] The proper approach to this evidence is to permit Pierini to testify as to the facts. Then, Crown and defence counsel may make submissions to the jurors as to what inferences the jurors should draw from that evidence. Then, the jurors will decide what inferences to draw, and how to use those inferences in determining the verdict.

[20] Accordingly, Pierini will be permitted to testify as to his factual observations of the Winstanley Oldsmobile, and his factual observations of the vehicles shown in the video clips, but he will not be permitted to express an opinion as to whether the Winstanley Oldsmobile is the vehicle shown in the video clips, or whether a vehicle shown in one video clip is the same vehicle shown in another video clip.

[21] Also, in order to help the jurors understand his testimony, I will permit Pierini to testify as to his specific observations of the vehicles that can be seen in the video clips, such as whether the vehicles are Oldsmobiles, the colour, size, and shape of the vehicles, whether there are stickers in the windows, and any other relevant characteristics of those vehicles.

[22] Further, by necessity, there will be some permissible opinion evidence from Pierini when Pierini testifies as to how and why he created the PowerPoint presentations. That is, Pierini must be permitted to testify that he searched through the raw video footage looking for video clips of an Oldsmobile that matched the characteristics of the Winstanley Oldsmobile. Therefore, he will be permitted to testify that the PowerPoint presentations include video clips of vehicles that he believes match the characteristics of the Winstanley Oldsmobile.

[23] In summary, the following general rules will apply to Pierini’s evidence:

1. Pierini will be permitted to testify as to why he selected these video clips from the raw footage. In particular, he may testify that he believes that the vehicles in the video clips match the characteristics of the Winstanley Oldsmobile in certain ways.
2. Pierini will be permitted to testify as to specific observations of each of the vehicles shown in the video clips to assist the jurors in determining if the vehicles match the characteristics of the Winstanley Oldsmobile.
3. Pierini will be permitted to testify as to his observations that would assist the jurors in following the continuity of the vehicles that are shown in the video clips. In particular, he may testify as to the pattern of snow on the roof of a vehicle, or the fact that a vehicle is travelling behind another identified vehicle.
4. Pierini will be permitted to testify as to why he checked footage from specific cameras in his search to find a vehicle that matched the characteristics of another vehicle.
5. Pierini will not be permitted to provide an opinion as to whether the Winstanley Oldsmobile is the vehicle shown in the video clips, or whether a vehicle shown in one video clip is the same vehicle shown in another video clip.

[24] Regarding the video clips of the unidentified male who is seen walking in the Chetwood neighbourhood, I do not accept the defence submission that this evidence is highly prejudicial. Pierini does not intend to offer an opinion that the person who is seen walking in the neighbourhood is Gough. Further, the video clips in question are not clear enough for anyone to identify the person shown in the PowerPoint presentations.

[25] In my view this portion of the PowerPoint presentations constitutes circumstantial evidence of a male person in the vicinity of Scanlon’s house at the approximate time of her murder. Moreover, the presence and description of a male person who was observed walking in the vicinity at this time will be the subject of testimony that is expected from other Crown witnesses. All of this evidence should be considered collectively by the jurors.

[26] Accordingly, I accept that the video clips of the unidentified male are relevant to the Crown’s case, and not prejudicial to Gough. I find that this evidence is admissible.

[27] As an ancillary matter, defence counsel objects to the use of circles that were inserted into the PowerPoint presentations by Pierini so as to highlight particular images in the video clips.

[28] In my view, the use of these circles is solely to identify the images referenced by Pierini in his testimony. I find that the circles, or other annotations, would be helpful to the jurors in understanding and following Pierini’s testimony. Moreover, I find that these circles are not particularly prominent, and they are used infrequently throughout the PowerPoint presentations. For these reasons, I will not direct that these circles, or other annotations in the PowerPoint presentations, be removed from the PowerPoint presentations.

[29] Finally, both counsel suggest, and I agree, that I should provide a mid-trial instruction to the jurors with respect to the PowerPoint presentations. In my view, the mid-trial instruction should explain that whatever reasons Pierini had for selecting these particular video clips for the PowerPoint presentations is not the jurors’ concern. It is up to the jurors to determine what the video clips show and whether what the jurors can observe in these video clips is important.

[30] In addition, I accept that I may give a mid-trial instruction with respect to the circles or annotations in the PowerPoint presentations. That mid-trial instruction would inform the jurors that those circles and/or annotations are only present to assist them in following the evidence. The jurors should not place any extra importance on the portions of the PowerPoint presentations that are circled or annotated.

CONCLUSION

[31] A ruling will go in accordance with the reasons set out herein.

J. R. Henderson, J. Released: March 2, 2017