Court File and Parties

Court File No.: 4403/16 Date: 2017-05-08 Superior Court of Justice – Ontario

Re: R. v. Bradley MacGarvie, Thomas Nagy and Duran Wilson

Before: The Honourable Mr. Justice Robert B. Reid

Counsel: G. Leach, Counsel, for the Crown R. Charlebois, and M. Peterson, Counsel, for Bradley MacGarvie G. Walker Q.C., and B. Walker, Counsel, for Thomas Nagy J. Razaqpur, Counsel, for Duran Wilson

Heard: April 7 & 10, 2017

Ruling on Admissibility of Thermal-Imaging Evidence

Corrected Decision: Publication Ban

THIS RULING IS SUBJECT TO A BAN ON PUBLICATION PURSUANT TO S. 648(1) OF THE CRIMINAL CODE OF CANADA AND SHALL NOT BE TRANSMITTED, REPRODUCED OR BROADCAST IN ANY MANNER UNTIL THE JURY IS SEQUESTERED OR A FURTHER ORDER OF THIS COURT ALLOWS.

Background Facts

[1] Messrs. MacGarvie, Nagy and Wilson have been indicted for the first-degree murder of Alexander Fraser. The murder is alleged to have taken place in the early morning hours of December 26, 2014. The theory of the prosecution is that all three accused persons were involved in the abduction of Mr. Fraser. The abduction is said to have occurred in the parking lot of an area known as “Gonder’s Flats” on the Niagara Parkway in the Town of Fort Erie. Gonder’s Flats is located along the west shoreline of the Niagara River. At about the time of the abduction, the Crown alleges that the accused set Mr. Fraser’s vehicle on fire. After the abduction, the allegation is that Mr. Fraser was deposited by two of the accused into a hydro channel in a remote location in the City of Niagara Falls. His body was recovered from the water of the hydro channel on March 17, 2015.

[2] The location of various individuals at relevant times including the deceased, the accused, and others is a live issue for trial. The actions of the accused are obviously also relevant.

[3] The United States Border Patrol, a branch of the United States Department of Homeland Security, conducts surveillance of the Niagara River to maintain border security. At the relevant time, a camera situated on Beaver Island in the State of New York, located on the eastern shore of the Niagara River approximately north-east from Gonder’s Flats, was panning continuously and automatically. During hours of darkness, the surveillance was conducted by the use of an “infrared” or “thermal-imaging” camera. A recording was made of the surveillance during the relevant time on December 26, 2014.

[4] The thermal-imaging camera shows heat signatures (that is, temperature differentials) from objects, animals, and people where heat is generated. The heat signatures appear as light-coloured objects in the black-and-white video recording.

Crown Application

[5] The Crown wishes to present the video recording to the jury. It proposes to edit the video for time so as to cut out much of the panning over areas to the north of Gonder’s Flats, including the Niagara River, that are obviously not relevant to the inquiry. There is a continuing timestamp on the video so the actual time of the displayed images can be seen. The defence submits that the jury should see the full, unedited video.

[6] The Crown intends to introduce the video recording through Carlo Lodico, an employee of the United States Border Patrol, who is a surveillance technician responsible for operating and monitoring the Beaver Island camera. The defence agrees with that proposal.

[7] Further, the Crown seeks a ruling to permit Mr. Lodico to interpret the heat signature images to assist the jury. He is not being presented as an expert witness. The proposed evidence includes the likely identification of heat signature images to be vehicles (either car or truck), human beings, and a vehicle fire. There is no suggestion that Mr. Lodico could testify to the identity of any human beings or the manufacturer of any vehicle. The defence objects to Mr. Lodico providing lay opinion evidence interpreting the heat signatures based on his lack of expertise, the tentative nature of his evidence, and the lack of need for interpretive assistance by the jury. There is also a concern that the jury will ascribe greater weight to testimony of the non-expert witness based on his “quasi-expert” status than is appropriate.

[8] Mr. Lodico was not called as a witness at this voir dire. The Crown relied on the transcript of his evidence at the preliminary hearing.

[9] If Mr. Lodico is not permitted to give evidence interpreting the heat signatures, the Crown proposes, as an alternative, that demonstration evidence be permitted.

[10] As to the details of the demonstration, members of the Niagara Regional Police Service (“NRPS”) attended at Gonder’s Flats in January 2017. A car and an SUV were used and an NRPS officer walked in the area including on a pathway to the north of the Gonder’s Flats parking lot. The demonstration was staged at approximately the same time of night as the incident allegedly involving Mr. Fraser and the accused in December 2014. The demonstration was recorded by a thermal-imaging camera located on Beaver Island. It did not pan but rather recorded in a fixed direction facing Gonder’s Flats.

[11] The demonstration was designed to show the jury heat signatures created by known objects and individuals to assist the jurors in understanding the likely sources of the heat signatures on the December 26, 2014 recording.

[12] The defence objects to use of the demonstration at trial primarily because it is one-sided. They submit that it was designed to mirror the Crown’s theory of what happened on December 26, 2014 at Gonder’s Flats. It was made without defence involvement and is highly prejudicial. Even though the purpose of the demonstration identified by the Crown is limited, the jury might well consider the activity depicted in it to be supportive of the Crown’s theory.

Non-expert Opinion

[13] As I have noted, there is no objection to Mr. Lodico testifying as a witness in order to introduce the thermal-image video. That video is obviously relevant, pertaining as it does to the place and time of certain alleged events including the burning of Mr. Fraser’s vehicle. There is also no objection to Mr. Lodico testifying as to the location and operation of the camera, and as to the fact that the camera captures heat signatures which are indications of temperature differentials amongst objects, animals and human beings in comparison with their surroundings.

[14] The submissions have focused on whether it is appropriate for Mr. Lodico to be allowed to offer his lay opinion as to what is depicted in the heat signatures.

[15] The leading case on the subject of non-expert opinion evidence is the decision of the Supreme Court of Canada in R. v. Graat. That matter involved the opinion evidence of police officers as to their view of whether the accused’s ability to drive had been impaired by alcohol. Justice Dickson (as he then was) focused in part on whether the lay opinion evidence was helpful to the trier of fact. He observed, at page 836:

The judge in the instant case was not in as good a position as the police officers or Mr. Wilson to determine the degree of Mr. Graat’s impairment or his ability to drive a motor vehicle. The witnesses had an opportunity for personal observation. They were in a position to give the court real help. They were not settling the dispute. They were not deciding the matter the court had to decide, the ultimate issue. The judge could accept all or part or none of their evidence.

[16] Focusing on the issue of evidence of impairment, Dickson J. found it illogical to allow the non-expert police officer to give his opinion of the driver’s observable condition and then deny him the right to state an opinion on the consequences of that observed condition so far as driving was concerned. In this case, the parallel is to allowing Mr. Lodico’s evidence about the method by which heat signatures are created without allowing him to opine on his view of their source.

[17] The court in Graat also made it clear that the weight to be given to the evidence offered by non-experts is entirely a matter for the trier of fact. In a jury case, such as this one, a limiting instruction is called for to neutralize any tendency on the part of the jury to give the lay opinion evidence any special weight beyond that of any other fact witnesses. That was the situation in R. v. Walizadah when the Ontario Court of Appeal affirmed the trial judge’s decision to allow a police officer’s lay opinion of what he observed on surveillance and re-enactment videos. In that case, the police officer gave non-expert opinion evidence about the type of vehicle that was observable in the surveillance footage. Apparently, the police officer was able to provide evidence helpful to the jury owing to his detailed examination of the video, even though the same original evidence was available for the jury’s consideration.

[18] Other policy considerations were identified in Graat that could lead to lay opinion evidence being deemed inadmissible. Justice Dickson referred to the dangers of confusing the issues or misleading the jury, unfair surprise, and undue consumption of time. The latter two clearly are not applicable in this case. I consider the former two to be of minimal concern. The issue of the source of the heat signatures will be clearly before the jury. Indeed, the defence has suggested that the jury could view the video and draw its own conclusions without the assistance of Mr. Lodico. As to the potential for the lay opinion evidence to mislead the jury, I refer back to the comment of Dickson J. in Graat as to the jury’s role to ascribe such weight as it sees fit.

[19] Following Graat and Walizadah, in further response to the defence contention that the jury may give the lay opinion evidence greater weight than it deserves, a proper limiting instruction can be given. If the Crown saw fit to call expert evidence, as the defence has submitted would be unobjectionable, I see a heightened, not reduced, danger of the jury giving the evidence undue weight.

[20] In considering the matter of lay opinion evidence from representatives of cell phone companies, the Ontario Court of Appeal in R. v. Hamilton found that the witnesses need not be qualified as experts. The evidence about the operation of cell phones and cell phone towers was accepted as factual evidence “which they were qualified to give because of their knowledge, observations and experience. Moreover, their evidence was reliable, probative and understandable. It was therefore properly admissible.” The court went on to observe that those witnesses “did not have to understand the scientific and technical underpinnings of the [general] rule [that a cell phone ordinarily registers at the nearest cell phone tower] or have an engineering degree to give this evidence.”

[21] In this case, the defence criticizes the evidence of Mr. Lodico at the preliminary hearing to the effect that he was not definitive in identifying the source of the heat signatures. He used phrases like “it appears to be a vehicle” and “it’s a heat signature, possibly from a human.” I do not consider the degree of certainty with which the sources of the heat signatures can be identified as a factor favouring the exclusion of the proposed lay opinion evidence. Regardless of how definitive Mr. Lodico’s opinion is, it is helpful information for the jury to consider. He is in a better position than the jury to interpret the heat signatures. It will be then up to the jury, properly instructed, to draw its own conclusion based on all the evidence.

[22] Mr. Lodico’s ability to opine about the contents of the video does not require him to have scientific and technical expertise, but rather general understanding and experience. On that subject, the Crown relied on his testimony at the preliminary inquiry. At that time, the defence indicated that there was no issue for the purpose of the preliminary hearing about Mr. Lodico’s qualification to testify as a non-expert lay witness.

[23] The preliminary hearing transcript indicates that Mr. Lodico had been trained in the use of infrared and “D” camera technology in surveillance systems while he was a member of the United States Marine Corps which included a tour of duty in Afghanistan. As well, he testified that he has been employed by the United States Border Patrol since March 2010. He went on, during the preliminary hearing, to identify his view of the source of the heat signatures, including differentiation between types of vehicles, identifying what appeared to be the silhouette of a human being as distinct from an animal and the possibility of the video depicting a person kneeling or lying down.

[24] Provided he is properly qualified, that evidence will be of assistance to the jury when it considers the video evidence. It is relevant and probative. The jury is not expected to have prior knowledge or understanding of infrared technology or the nature of heat signatures. Its task will be enhanced by the evidence of someone like Mr. Lodico who has relevant experience to call upon. I note parenthetically that the evidence shown in the video is only a small portion of the evidence being relied upon by the Crown to establish the location and activities of the accused at the relevant time.

[25] It may be, based on Mr. Lodico’s employment duties, his years of experience, and his prior training and experience in the military that he has the general understanding and experience to qualify him to provide evidence at trial as to the source of the heat signatures visible in the surveillance video. Based on the evidence presented at the voir dire through the preliminary hearing transcript, I do not have enough information to rule on Mr. Lodico’s qualifications.

[26] I am prepared to hear further evidence by way of continuing voir dire during the trial on the issue of Mr. Lodico’s qualifications to give lay opinion evidence if counsel have not resolved that point by agreement. Subject to being satisfied as to his qualifications, I would allow the lay opinion evidence to be given at trial.

Demonstration Video

[27] Regardless of my decision on the admissibility of lay opinion evidence, I would not permit the Crown to present the demonstration evidence to the jury. I come to this conclusion after balancing probative value against prejudicial effect.

[28] I accept that the core purpose for which the demonstration was produced is appropriate. The sources of the heat signatures shown on the December 26, 2014 video are subject to interpretation. It might assist the jury in that interpretive function to know the actual sources of heat signatures captured by the same or a similar type of camera on another occasion, even two years after the fact, under generally similar circumstances. The demonstration is relevant and material to the question of what occurred on the occasion of Mr. Fraser’s alleged abduction.

[29] The problem is the likely prejudicial effect of the proposed demonstration evidence. There is a serious risk that the jury will conclude, even with a proper limiting instruction, that the demonstration is the equivalent of a re-enactment. For example, the demonstration does not just show the heat signature of a male of a certain height and weight wearing certain clothing. Rather, it shows a known individual moving in certain areas of Gonder’s Flats, variously walking, lying and crouching in a manner and in locations consistent with the Crown’s theory of what the original video depicts. The Crown submits that the demonstration is not purported to be an accurate re-enactment, but in my view, that makes the danger of prejudice even greater.

Edited Video

[30] As I have noted, there is no objection to admission of the unedited December 26, 2014 video recording from the Beaver Island thermal-imaging camera. The camera pans continuously, sweeping north and south along the Niagara River. Approximately 30 seconds of each sweep covers an area of the river north of Gonder’s Flats which is irrelevant to the case. That 30 seconds shows mainly the open water of the river. The duration of the unedited recording is about 60 minutes and the proposed edited version is about 23 minutes. The timestamp is clearly indicated on the video.

[31] I acknowledge that having the jurors watch the unedited version will give them to a sense of the time gap between the potentially relevant visible heat signatures at Gonder’s Flats that appear on the video. In my view, however, the timestamp on the video itself makes the time gap clear.

[32] On balance, I do not consider it a good use of the jury’s time to watch the unedited version. Likewise, watching the repeated periods of irrelevant video may make it more difficult for the jury to focus on the heat signatures when they do appear.

[33] Therefore, the Crown may present the thermal-imaging video after editing out the irrelevant portions of each camera sweep, if it chooses to do so.

Conclusion

[34] For the reasons set out above, I am reserving my decision on whether to allow the lay opinion testimony of Carlo Lodico pending the receipt of further evidence about his qualifications and experience. Assuming I am satisfied on those points, the lay opinion evidence will be permitted.

[35] Also for the reasons set out above, demonstration evidence as to the thermal-imaging video will not be permitted.

[36] Finally, if the Crown sees fit to tender the thermal-imaging video in the proposed edited fashion, it is free to do so.

Reid J. Date: May 8, 2017