Court File and Parties

COURT FILE NO.: CR-17-7/275 DATE: 20170405

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN - and - MAURO GRANADOS-ARANA

Counsel: Anna R. Tenhouse and Elena Middelkamp, for the Crown Tyler Smith and Misha Feldman, for the accused

HEARD: April 4, 2017

K.L. Campbell J.:

Pre-Trial Ruling Admissibility of Crime Scene and Autopsy Photographs

A. Introduction

[1] The accused, Mauro “Cruz” Granados-Arana, faces an indictment that charges him with first degree murder in connection with the August 24, 2012 killing of George Fawell in Toronto. This ruling considers the admissibility of certain crime scene and autopsy photographs that the Crown seeks to tender into evidence before the jury.

[2] Defence counsel has challenged the admissibility of only a few of the photographs tendered by the Crown. However, with respect to those controversial photographs, defence counsel contends that they would provide little additional information to the jury, and are therefore of slight probative value, yet their admission into evidence would be prejudicial to the accused given their graphic and inflammatory nature. On the other hand, the Crown argues that the probative value of these photographs on a number of important issues in this case far outweighs their potential prejudicial effect, and justifies their admission into evidence.

B. The Governing Legal Principles

[3] The admissibility of photographs depends upon their accuracy, the fairness of what they depict, and their authentication. Accurate photographs that have been properly authenticated and which fairly and truly depict what they represent, are presumptively admissible, assuming they are relevant to some issue in the pending criminal proceeding. Such photographs portray visually what might properly be the subject of oral testimony. See generally, R. v. Murphy, 2011 NSCA 54, at paras. 34-50; R. v. Creemer and Cormier, [1968] 1 C.C.C. 14 (N.S.C.A.), at p. 22.

[4] Nevertheless, such photographs may be excluded from evidence where their probative value is exceeded by their prejudicial effect. For example, graphic photographs of a deceased in a homicide case may be too prejudicial to an accused because they may shock and inflame the members of jury, potentially making them more willing to convict the accused out of sympathy for the family of the deceased and the horrific nature of the alleged offence. The persuasive burden is, however, upon the accused to demonstrate that presumptively admissible evidence should be excluded due to its prejudicial effect. See R. v. Currie, [2000] O.J. No. 392 (S.C.J.), at para. 8.

[5] In considering the potential prejudicial impact of photographic evidence on a jury, it is important to keep in mind that modern, sophisticated juries are unlikely to quickly abandon their personal oaths or affirmations and reach an emotional verdict based upon graphic and disturbing photographs of the deceased. Gruesome and grotesque images are common place in daily news reports, on internet websites, on television and in the movies. See R. v. Baptiste, [2000] O.J. No. 1639 (S.C.J.), at para. 6; R. v. Trakas, [2007] O.J. No. 3240 (S.C.J.), at paras. 6-9; R. v. S.(C.L.), 2009 MBQB 130, at paras. 17-21; R v. Sipes, 2011 BCSC 920, at paras. 20-23. Nearly 18 years ago, LaForme J., as he then was, provided this cautionary observation, in R. v. Kinkead, [1999] O.J. No. 1498 (S.C.J.), at para. 17, about the need for trial judges not to underestimate the abilities of modern juries to focus on the important issues, without being emotionally distracted by graphic or disturbing photographs:

All of the oral evidence in this trial will describe the brutality of this crime and the jury will know its nature. They will know there was a crime committed that resulted in a considerable amount of blood, damage and death to the two sisters. Indeed, they will know this probability exists when they hear Mr. Kinkead arraigned. In my view, and in my experience, juries are generally not surprised, horrified or inflamed to the point of hatred by the scenes they expect to see from a horrific crime. It is certainly true that we live in a time when communications are extraordinarily rapid, comprehensive and complete. The public is deluged with graphic accounts of horrible and dreadful news delivered both in orally pictorial detail assisted by visual depictions. Movies and television shows leave nothing to the imagination. While I would not go so far as to say the Canadian public is totally numb to violence and brutality, I have no hesitation in arriving at the conclusion that it is not always surprised or stunned by it. All of which is to say; I nonetheless continue to believe that we must remain cautious and accept that people can still be horrified and inflamed by what they see. Consequently this exercise continues to be necessary, however, any prejudice alleged must be based upon contemporary common sense and have an air of reality to it.

[6] As to the nature of the potential relevance and probative value of such photographic evidence, as Chadwick J. noted in R. v. Schaefler, [1993] O.J. No. 71 (Gen.Div.), at para. 23, they may: (1) helpfully illustrate the facts on which an expert has based their opinion and the steps by which the expert arrived at his or her opinion; (2) reveal the minutiae of objects described in the viva voce testimony of a witness, such as, for example, the nature and the extent of wounds or injuries; (3) potentially corroborate the viva voce testimony of witnesses, by providing a picture of the evidence, which may assist the jury in determining the accuracy and weight of the evidence; (4) link the injuries of the deceased to weapons that may have been used in the murder; (5) provide visual assistance to the jury on important issues such as the intention of the perpetrator of the killing, and whether the murder was planned and deliberate; and (6) help the jury determine the truth or otherwise of the respective theories put forth by the Crown or the defense, including such issues as which of a number of accused may have committed the crime and/or whether the crime was committed in self-defence. See also R. v. Currie, at para. 6; R. v. McGregor, 2015 ONSC 825, at para. 29-30; R. v. Martineau, 2015 ONSC 2701, at para 9.

[7] In their helpful summary of the jurisprudence on this topic, S.C. Hill, D.M. Tanovich and L.P. Strezos (ed.), McWilliams’ Canadian Criminal Evidence (2016, 5th ed.), vol. 2, § 23:20.40, at p. 23-14, suggest that “[i]t is relatively rare for graphic images to be excluded” from evidence “even where they are in colour, explicit, or taken during an autopsy, although the number of photos and restriction to those with content necessary for the proceeding is appropriate as are limits in the manner of presentation.”

C. The Present Case

1. Introduction

[8] The deceased is alleged to have been killed on the night of August 24, 2012. His body was discovered later that morning on an embankment near the railway tracks behind the Jimmie Simpson Community Centre located at 870 Queen Street East. The deceased had suffered numerous blunt force and sharp force injuries. Dr. Michael Pickup, an experienced forensic pathologist, attended at the scene, and later performed an autopsy on the deceased on August 25, 2012. Dr. Pickup ultimately concluded that the immediate cause of death was “multiple sharp force injuries.”

2. The Crime Scene Photographs

[9] Defence counsel has raised no objection to the admissibility of any of the “crime scene” photographs which the Crown proposes to put before the jury. These photographs show, amongst other things: (1) precisely where, geographically, the body of the deceased was discovered; (2) exactly how the deceased was dressed, the posture of his body on the ground, and how his hands were tied in front of his body; and (3) where other physical items of interest were discovered near the body of the deceased.

[10] I agree with joint position of the parties that there is no basis upon which these photographs might properly be excluded from evidence. Indeed, all of these photographs are admissible as their probative value well exceeds any potential prejudice that might flow from the evidence. Accordingly, and for purposes of clarity, the Crown may tender into evidence all of the photographic materials contained in the binder entitled “Exhibit Book for Aerial Photos & Diagrams & Scene Photos Book #1.”

3. The Autopsy Photographs – Admissible

[11] In conducting the autopsy of the deceased, Dr. Pickup prepared a number of diagrams of the body of the deceased, recording his many findings of physical injuries. Defence counsel takes no issue with the admissibility of any of these diagrams. Indeed, defence counsel argues that the viva voce testimony of Dr. Pickup, together with the assistance of these diagrams, will provide the jury with all of the information that they need to fully understand the nature and degree of the injuries suffered by the accused. To also place the controversial autopsy photographs of the deceased before the jury, defence counsel contends, will provide only little additional information to the jury, but will cause great prejudice to the accused. I disagree.

[12] In my view, the few additional autopsy photographs of the deceased which the Crown proposes to place before the jury have a much greater probative value than prejudicial impact and, therefore, are admissible in evidence in this case.

3. The Photographs of the Defensive Injuries on the Hands

[13] The Crown has tendered a couple of autopsy photographs of the right and left hands of the deceased. These “close up” photographs clearly reveal the defensive injuries the deceased suffered to these parts of his body.

[14] While the handwritten diagrams of these injuries helpfully prepared by Dr. Pickup have arrows drawn to where these injuries are located, and indicate the length of these injuries in centimeters, they do not convey the nature and degree of these hand injuries, as reflected in the tendered photographs. The photographs convey the true nature and extent of these hand injuries in a way that a handwritten diagram, however accurately drawn, simply cannot. In short, these photographs, in my view, have significant probative value.

[15] In addition, it strikes me that the potential prejudice to the accused from the admission of these photographs is fairly described as slight. The hand injuries are not numerous, deep or gruesome in their appearance. In my opinion, they are not the kind of photographs that might conceivably cause any emotional reaction on the part of the members of the jury. Indeed, the Crown contends that these photographs suggest that the deceased must have had his hands tied quickly, otherwise he would have suffered much greater defensive injuries to his hands.

[16] In any event, I am satisfied that these “close up” photographs of the deceased’s hands are properly admissible as their probative value exceeds their prejudicial impact.

4. The Photographs of the Head and Shoulder Injuries

[17] The Crown has also tendered three black and white autopsy photographs of the deceased’s head and upper back area, displaying the numerous injuries the deceased suffered in these locations of his body. Two of these photographs are “close up” photographs of the left-rear and right-rear areas of the deceased’s head. By the time these photographs had been taken, the deceased’s hair had been largely shaved off his head, so that the injuries to the back and sides of his head could be seen. The third photograph depicts the back of the deceased’s head, and the back of his neck, as well as his upper back and shoulder area. On each of these three photographs, Dr. Pickup has included some handwritten notes and measurements regarding each of the injuries revealed.

[18] In my opinion, the probative value of these photographs significantly exceeds their potential prejudicial impact. Only these photographs reveal the true nature of the head and shoulder injuries suffered by the deceased. While the diagrams prepared by Dr. Pickup clinically document the location and measured size of each injury, it is only the photographs which provide an accurate sense of the true comparative size, depth, nature and degree of these injuries. These photographs must be admitted into evidence if the jury is to properly understand, and be able to assess, the degree of force that was employed in the infliction of these injuries. The degree of force used, the number of blows, and the location of the blows are, of course, relevant to whether the person who caused the death of the deceased had the necessary murderous intent, and whether the murder was planned and deliberate. In short, in my view this is one of those situations where a picture is worth a thousand words. See R. v. J.(N.), 2015 ONSC 1645, at paras. 9-17.

[19] In addition, these few autopsy photographs will also helpfully illustrate the expert opinion evidence of Dr. Pickup, and permit the jury to independently assess the merits of that expert opinion. The details revealed in the photographs may also provide an evidentiary link between the injuries suffered by the deceased and the weapons likely used to inflict those injuries. Finally, the photographs may also provide some insight into the motive of the perpetrator of the killing, given the great violence inflicted in the personalized attack on the deceased. See R. v. Martineau, at paras. 24-26, 32-35, 41-42, 53-57, 59, 62.

[20] On the other side of the balancing equation, the gray-scale nature of the black and white photographs, in combination with the handwritten addition of specific measurements, and the clinical photographic perspective, all serve to help minimize any potential prejudice to the accused. Having reviewed and contrasted the appearance of these autopsy photographs when presented in colour, it is apparent that the efficient presentation of the black and white versions of these photographs will help ensure that any potential emotional impact of the images is significantly reduced.

D. Conclusion

[21] In the result, the application to exclude some of the photographs tendered by the Crown is dismissed. The photographs are admissible in evidence. Their probative value exceeds their prejudicial impact. Accordingly, in accordance with this ruling, the Crown may present these photographs to the jury through the appropriate witness.

Kenneth L. Campbell J.

Released: April 5, 2017