SUPERIOR COURT OF JUSTICE
ONTARIO
CITATION: R. v. Barreira et al. 2017 ONSC 1665
COURT FILE NO.: CR-15-4953
DATE: 2017-03-16
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 on March 14, 15, 2017
REASONS FOR MID-TRIAL RULING – VOIR DIRE REGARDING ADMISSIBILITY OF COMPOSITE 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, accompanied by two other men, approaching the victim Tyler Johnson (who appears to be talking to the fourth accused) with a gun in his hand and then shooting Tyler Johnson, who ultimately died from his injuries. The Crown has tendered a number of surveillance videos from a number of locations in downtown Hamilton into evidence. The time stamps on the videos are not synchronized and the times vary from video to video. The Crown seeks to enter a composite video that is a compilation of the raw videos already introduced into evidence. The composite video leaves the original time stamps from the raw video but has the actual time entered in the form of a running time clock in the bottom right hand corner of the composite video. The composite has circled the various parties and also has commentary as to the names of the parties and where they are going. Also at least one restaurant is labelled on the composite video.
ISSUES
[2] Should the Crown be entitled to introduce the composite video?
[3] If yes, what changes to the underlying raw videos are admissible?
ISSUE #1 – CROWN APPLICATION ALLOWING INTO EVIDENCE THE COMPOSITE VIDEO
FACTS
[4] Chad Davidson (Chad) and the three other accused are charged with the first degree murder of Tyler Johnson on November 30, 2013.
[5] As indicated in previous rulings, my review, of the materials filed on this motion and other motions to be decided before me, indicated the Crown will adduce a videotape which allegedly shows the victim Tyler Johnson being shot at close range by the accused Chad.
[6] I understand that the Crown’s theory is that Chad shot Tyler Johnson and was aided and abetted by the other three accused in a planned and deliberate murder.
[7] One of the accused, Joshua Barreira (Joshua), has given three statements and the latter two statements indicate that Chad 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 Joshua and not against Chad or the other two accused. The Crown for the first time, at this voir dire, has indicated they are no longer relying on the third statement.
[8] In the second statement of Joshua, at pages 79-81, Joshua indicates that Chad shot Tyler Johnson and there was only one shot. From pages 81-84, Joshua indicates his brother Brandon got in Joshua’s car and so does Chad. Joshua would not get in the car and Joshua is yelling at Brandon to get out of the car. Chad gets out of the car and tells Joshua to get in the car but Joshua will not. An argument breaks out and Chad tells Joshua and some guy in a white coat (possibly Justin Moore) to get in the car. Chad then fires two shots at Joshua, “bang, bang” as Chad appears to be getting all the witnesses in the car. Brandon stays in the car and pulls around and then Joshua took off and went to King Street and hopped into a cab.
[9] Accordingly, it is obvious that the number of shots fired at the crime scene and the times between the first shot, subsequent shots (if any) and the car leaving the scene are important aspects of what happened at the crime scene.
[10] The Crown has adduced at trial a variety of surveillance videotapes in the downtown area that surround the crime scene. A number of witnesses have testified regarding their appearance on these videotapes.
THE EVIDENCE OF WITNESSES/ADMISSIONS GIVEN AT THIS TRIAL THUS FAR REGARDING THE VIDEOTAPES
[11] Entered as Exhibit 2 and 2A are two surveillance videotapes from the Vida La Pita restaurant taken on November 30, 2013.
[12] Entered as Exhibit 3 and 3A are a series of three surveillance videotapes from the Big Bee convenience store taken on November 30, 2013.
[13] Entered as Exhibit 9 is a Tim Horton’s video of the interior of the store taken on November 30, 2013.
[14] Vida La Pita, Big Bee and Tim Horton’s are in close proximity to each other.
[15] Brandon Barreira (Brandon), by way of admission, admits to being seen on excerpts of videos from Vida La Pita, Big Bee and the Tim Horton’s described above and is the individual wearing beige pants, a grey-bluish coat, a scarf, a white shirt and a black satchel. See Exhibit 10.
[16] Louis Rebelo (Louis), by way of admission, admits to being the individual seen at 3:10 a.m. and 3:11 a.m. on the Vida La Pita video, channel 5 and the individual in the Tim Horton’s video entering at 3:05 a.m. and exiting at 3:06 a.m. He is seen wearing a white long sleeve shirt, black vest, ball cap with a beard. See Exhibit 11.
[17] Joshua, by way of admission, admits to being the individual seen in the Big Bee, Vida La Pita and Tim Horton’s videos, wearing a red hat, black coat with hood down or up and jeans. See Exhibit 12.
[18] Tariq Ahmad testified that his cab number 238 is parked at the upper right portion of the Vida La Pita video, channel 5 and it pulls away at 3:11:13. He heard a “click” just before he pulled away and then saw a young man grabbing his jacket running to the Tim Horton’s. Mr. Ahmad thinks that it is his cab pulling away on the Big Bee video, channel 15 at 4:09:30 but cannot be sure because he cannot make out the cab number.
[19] Detective Gibson was able to identify Brandon Barreira on the Big Bee video on Exhibit 3A at channel 15.
[20] Mallory Turco, who was parked in the Tim Horton’s parking lot, during the shooting, was able to recognize her boyfriend Ricky Moore on the Vida La Pita video, channel 3, leaving the Vida La Pita at 3:10:31 and at 3:10:31, she recognized Tyler Johnson leaving the Vida La Pita. They were at the bottom right hand corner of the video. She saw a commotion and then saw Tyler Johnson run into the Tim Horton’s and collapse. Ricky Moore also ran away.
[21] Scott LaPointe was on his way back to the Staybridge Hotel and heard a gunshot or gunshots coming from the area to his right which is where the Big Bee, Vida La Pita and the Tim Horton’s are. He and his wife can be seen on Exhibit 19 which is an excerpt from a surveillance video from King West Motors. He and his wife ran and on Exhibit 20, a surveillance video from the Staybridge Hotel, he and his wife can be seen running into the hotel at 2:52:50 a.m. After cross-examinations were completed, Mr. LaPointe was certain that at least one shot was fired but no longer remembers more. In prior statements and testimony, he testified that there could be as many as four shots. At the preliminary hearing, he testified that it was 30 seconds between the first and second shots but at trial, he could no longer remember.
[22] Lindsay Bruder-Grant was also staying at the Staybridge Hotel and was outside and saw a couple (the LaPointes) run toward the hotel at 2:52:50 a.m. on Exhibit 20. She saw a black car come out of the alleyway and turn right at a high speed at 3:09 a.m. on Exhibit 20. She testified that the videos shown to her accurately reflected what she saw. She testified she heard pop-pop-pop and that these were gun shots. In-chief, she testified that there was 5-10 seconds between the first and second pop. In cross-examination, she reduced that gap and indicated that the pop-pop-pop sounds took about 2-3 seconds in total.
[23] Michael Runions is a panhandler and recognized himself on the Vida La Pita videos, channels 14 and 15. He saw three men go by him and go to the east corner of the Big Bee. Shortly after, one man went over to the Vida La Pita. The man who was about to be shot took a swing at the shooter but did not connect. Mr. Runions then heard a shot or soft bang and went into the Big Bee, as shown in the channel 15 video, as he was afraid of being shot.
[24] Jessica Riley, the mother of Louis Rebelo’s son, viewed the Vida La Pita video, channel 5 from 3:09 to 3:10:41 but could not identify the people in the top left hand corner. She viewed the other Vida La Pita video (channel 3) and recognized Tyler Johnson leaving the Vida La Pita at 3:10:35 and the other person leaving the Vida La Pita at 3:10:32 looks like Ricky. In the Tim Horton’s video (Exhibit 9) she recognized Roberto Ferreira at 3:14:10 and Louis Rebelo at 3:15:19. Louis is wearing jeans, a white shirt and a black vest. She recognizes both these men leaving Tim Horton’s at 3:16:19 on the Tim Horton video.
[25] Abdul Qadri testified that he picked up a man in his cab at about 3:00 a.m. on November 30, 2013 at Hess Street North. He was shown Exhibit U which shows Mr. Qadri picking up this man. In Exhibit 12, at paragraph 8, Joshua Barreira admits he is the man getting in the taxi.
[26] The videos adduced thus far at the trial – Exhibits 2, 2A, 3, 3A, 9,19, 20, U – appear to be of good quality, give a clear picture of the events and there has been no evidence of any changes or alteration (except for the circles and commentary on Exhibit U). A number of witnesses have identified the accused or themselves on these videos, as outlined above. The times of the videos vary as obviously they come from different locations and are not synchronized.
[27] The Crown called on this voir dire, Michael Plaxton, certified forensic video analyst. His resume was filed as Exhibit V1. In his report entered as Exhibit V3 in this voir dire, Mr. Plaxton indicated he took the time of the 911 call at 3:12 a.m. as accurate and then applied this time to all the videos to co-ordinate a consistent time for all the videos to produce a consistent time within a margin of error of less than a minute. The video files were re-sized for consistency and adjustments were made to playback speed to approximate real time. A corrected time code was placed on each video clip. The same scene of the final few minutes before the shooting was taken by a different camera and therefore the time jumps back to go over the same scene at the same time from a different camera. Circles and arrows and commentary were also placed on the videos.
[28] Mr. Plaxton was called as a witness on this voir dire. He was qualified as a certified forensic video analyst. Mr. Plaxton collects videos from crime scenes and analyzes them and compares them to known objects and timelines.
[29] Regarding the videos, there were 84 hours of videos collected by the Hamilton police regarding this investigation. Exhibit U, the video composite, distills all that video down into a 39 minute video. Exhibit U starts with a time stamp of “November 30, 2013, at 2:22:58 a.m. Hess – East”. Regarding this Hess – East video, all the time stamp information is done automatically at the time of the taking of the video. It is called a CCTV video and is controlled by the Hamilton Police Service Action Team. They are regularly checked by police personnel. Over the five years, that Mr. Plaxton has had access to CCTV videos, the time stamps are always accurate as to date and time. The person in charge of CCTV videos is Amanda Vernon.
[30] Regarding the first CCTV video at 2:22:58, Officer Plaxton has added a white circle around four individuals and has put in the names Tyler Johnson, Ricky Moore, Justin Moore as subtitles. The purpose of the putting the names in subtitles is to identify them as the people in the circle.
[31] Officer Plaxton has added the graphic Smoke’s Poutinerie on to the composite video. He was directed to add these circles, graphics and subtitles by Detective Cattle. The CCTV video takes frames at a rate of one frame per second. Officer Plaxton has made no changes to the raw video that went into the composite.
[32] Regarding the non CCTV videos, he has adjusted the time stamps and has placed a running time clock on the videos using differential information obtained by Detective Wong. The running time clock placed on the videos is accurate to plus or minus one minute.
[33] Detective Wong would take a known accurate time and compare it to the time stamp of a non CCTV video. The best guide to accurate times are cell phones. The cell phone times are generated by a service provider from the Research Council of Ottawa and are always accurate. An example of the methodology is the use of the 911 call from a cell phone operator at the Tim Horton’s. On the videos, one can see the assistant manager on his cell phone. The information is that the 911 call made by that person started on November 30 at 3:12 a.m. and finishes at 3:18 a.m. The assistant manager can be seen on the video turning off his phone. Accordingly, the accurate time of the end of this call is 3:18 a.m. However the Tim Horton’s video shows the time of the end of the call as 3:28 a.m. Accordingly, it can be concluded that the Tim Horton’s video is off by ten minutes give or take the margin of error of one minute.
[34] Detective Cattle determined what went into the video and Detective Wong was assigned to assist Officer Plaxton.
[35] Regarding the outside video of the Tim Horton parking lot, it is out of focus and he applied a filter to it but it did not change the context or events. The filter is often used to improve sharpness, lightness, darkness but in this case, it had little impact. The Tim Horton’s video operated at five frames per second.
[36] At times, when there were two different videos covering the same time period but at different places, Officer Plaxton combined the two with a smaller insert into the other video. The admissions of the various accused as their being in the raw video can be seen in the composite video as well.
[37] Regarding the Big Bee video, Constable Wong used his differential techniques using a DVR to determine that, for example, that the Big Bee channel 14’s time stamps were 58 minutes in front of the real time. Regarding the Big Bee video channel 13 where three accused are shown huddled together in the north east corner of the Big Bee, an infrared camera was used and this infrared image may distort colours. That is why the colours of the individuals at real time 3:10:04 do not coincide with the colours of those individuals in the other videos. However, the colours of the jacket and pants of Joshua who is admitted to be on the channel 13 video does not vary from the colour of the jacket and pants that Joshua is seen wearing in earlier videos.
[38] From my view of the composite video, the time period between the shooting of Tyler Johnson to the leaving of what appears to be the Jaguar vehicle is between 20-30 seconds.
[39] The King West Motors video was off by 1 hour and 5 minutes and the running time clock shows the difference from the time stamp. Officer Wong was able to determine the real time by using his differential analysis from an accurate time source. Similarly, Officer Wong was able to determine the time differential on the Staybridge video.
[40] The video entered at the preliminary hearing as Exhibit 31 was 10 minutes shorter than Exhibit U as it edited out ten minutes of footage at Hess Village where nothing was happening. It did not have the running time clock as in the composite video.
[41] In cross-examination by Ms. Goldlist, Officer Plaxton indicated there were 84 hours of raw data from separate videos and it was Detective Cattle’s decision as to what to put into the videos.
[42] Detective Cattle had a theory and he directed what was to be put into the composite video. This is not out of the ordinary. Officer Plaxton was relied upon to use his expertise and put into the composite video what Detective Cattle told him was relevant. At times, Officer Plaxton had input as to what and how to put in the raw data but Detective Cattle had the final say.
[43] Generally, the videos were too far from the events to be used generally for identification purposes. However, identification was possible with the interior videos of the Tim Horton’s and the Big Bee and Vida La Pita videos.
[44] The identification of individuals put in by subtitles was based on what Detective Cattle told him. Detective Cattle said he had witnesses to identify the various people. Officer Plaxton was not given any photos of the people outlined in the video. No Google maps were used to identify the Smoke’s Poutinerie.
[45] Regarding the Hess-King video, sometimes the CCTV videos do not put the times and dates on the videos but are placed in the computer on a separate part of the program. Overlaying the time stamps onto the CCTV video creates technical problems.
[46] Infrared cameras can make clothing lighter, darker or have no impact at all.
[47] It took 3 minutes and 10 seconds for Tyler Johnson and Ricky Moore to walk from Hess Village to the Tim Horton’s but it only took Brandon Barreira 1 minute and 20 seconds. The walk from King and Hess to the outside view of Tim Horton’s is not covered by any videos.
[48] The composite video was not sent to the defence. It distills 84 hours of videotape and tells a story but that is its purpose.
[49] In cross-examination by Ms. Page, Officer Plaxton indicated he was relying on the truth of Officer Wong’s will say and also relied on Officer Wong following proper protocol.
[50] The Staybridge video was seized on December 3, 2013 and there was no differential in the time found on December 3, 2013. The Tim Horton’s videos were seized on November 30, December 2 and December 5, 2013 and it was found on those dates that the Tim Horton’s video was 10 or 11 minutes fast. The King West Motors video was seized on December 6, 2013 and the time on that date was found to be 1 hour and 5 minutes fast. The Vida La Pita video time was accurate and the Big Bee video was 58 minutes fast.
[51] There was an assumption that between the time of the event and the seizure of the videos, that no one had reset the clocks on the taking of the videos.
[52] A cell phone does not show seconds. The time on any event in the composite could be accurate plus or minus a one minute time differential and the event shown on the composite could occur in a two minute window. The event could occur at the time in the composite but could also occur plus or minus a minute and accordingly within a two minute window. For example, at channel 10 on one of the Tim Horton’s videos, the time on the raw video was 3:08:56 but it is 10 minutes fast and the time on the composite shows 2:58.56. That may or may not be wrong as the event could occur between a range of 2:57:57 to 2:59:55.
[53] There is no time stamp on the CCTV video at Hess and King and the Staybridge video but the time is shown on the software accompanying the video. Officer Wong determined that those times were accurate using the DVR time on the computer software.
[54] With the Tim Horton’s video, the police had a known event with a known time – the 911 call – and were able to determine an accurate time. Before that, Officer Plaxton was using the Vida La Pita as the anchor to determine the accurate time. The employee at Tim Horton’s at the end of the 911 call could be seen removing the cell phone and pressing the button. It is possible that the phone could have not been turned off and there is some level of unreliability.
[55] Most systems suffer from drifting. The time stamp on the video will be accurate but then the system will speed up or slow down.
[56] Infrared cameras cannot be relied on to determine darkness or light and cannot be used to rely on colour identification.
[57] Regarding the Tim Horton’s cameras, sometimes they can jump or skip time and not record for a period of time. A number of explanations are available including the camera has run out of memory.
[58] Ms. Page reviewed a number of the videos on the composite. The composite purports to run in real time but that does not mean to the last second. The 39 minute composite does not cover 39 minutes in real time. For example, there is a jump of 17 seconds as illustrated in Exhibit V5. In the CCTV videos, the same event is captured but the time is off by approximately two minutes. The running time clock is not perfectly accurate to the second but is accurate within a range of two minutes. This could be remedied by having three clocks on the composite representing the range of times that are accurate. Alternatively, a graphic could be added to the time clock area that the accuracy of the time is within a two minute time frame.
[59] In cross-examination by Ms. Audet, Officer Plaxton recognized that the composite shows it took Tyler Johnson 3 minutes to walk from Hess to Tim Horton’s but it took Brandon 1 minute and twenty seconds. The real problem is there is a period of time during those walks where there is no video.
[60] Every system has different times and different second allotments. The way to eliminate the seconds’ time gaps is to exclude seconds entirely.
[61] Officer Wong’s time differential work played an essential role and Officer Plaxton relied on Officer Wong’s time differential work.
[62] A cell phone is the preferred device to fix accurate time. Cell phones update time automatically but the time can be manually altered and that would produce a different time. Officer Plaxton does not know if Officer Wong’s cell phone adjusted time automatically (as Officer Plaxton’s did with the spring time change last weekend) or if it is done manually.
[63] The Staybridge system is set up to be triggered by motion. It is frozen until there is some slight movement and records at 1-2 frames per second and then has more frames with definite movement. One frame per second misses 29/30 of each second and as the frames per second get lower, the video can become disjointed. In order to be unable to distinguish running from walking, you would need less than 1 frame per second and would require 1 frame per 2-3 seconds.
[64] Officer Plaxton is relying on a set of assumptions which would include that cell phone times are adjusted automatically, there are no changes in the DVR system regarding the time of the event and when the video is seized, the CCTV times are accurate.
[65] Officer Plaxton did not assume it was a Jaguar on the Staybridge and Tim Horton’s videos. He viewed the videos and recognized it as being a Jaguar.
[66] In cross-examination by Mr. Dorsz, Officer Plaxton testified there were no video enhancements. He tried to improve the out of focus Tim Horton’s out door video but his attempt to sharpen it was unsuccessful.
[67] Officer Plaxton acknowledged there was a 5 second drift in time in the 20 second portion of a Tim Horton’s video starting at 3:03:10. Sometimes videos do that and sometimes they speed up and sometimes they slow down.
[68] The generated time is inaccurate up to two minutes and it was Officer Plaxton’s decision to put in a running time clock due to the varying times on the videos and the fact that some videos had no time stamp. There was one clip that was not included in the composite as it was so short that there was no point to put it in.
[69] In re-examination, Officer Plaxton confirmed that the videos were not altered. Some were re-sized for consistency.
[70] Detective Cattle was called by the Crown. Detective Cattle testified that he reviewed many hours of video evidence and all of the approximate 80 hours of video evidence was disclosed to the defence. For the Hess Village videos, he reviewed the videos and found the portions where Brandon and his friends were on the video and where Tyler Johnson and Ricky Moore were on the video.
[71] The composite video was not done to advance the police theory but was based to show the order of what was happening. There were 80 hours of video in total and the clips in the composite were designed to show Tyler’s Johnson’s last movements in Hess Village before he headed down to the Vida La Pita and Big Bee Plaza.
[72] Detective Cattle watched all the Hess-King and George-Queen Street videos from 9 p.m. to 4 a.m. and looked for Tyler Johnson with Ricky Moore and for Brandon. He directed to Officer Plaxton to put on sub-titles to point out what was happening and directed to put white circles on the composite to point out the people that were difficult to make out but Detective Cattle knew who they were.
[73] Detective Cattle did not put in the composite the treatment of Tyler Johnson in the doorway or what happened there. On the videos, Ricky identified himself, Brandon was identified by police officers, and Louis and Joshua were identified by Roberto Ferreira and Chad by Pam Schnurr, Krystal Dore and Danielle Waun.
[74] The running time clock was added to the composite because the clocks were off and the composite was designed to show the real time of the chronology as events were unfolding. There was no video at the back of the Big Bee and Vida La Pita that would show persons entering or exiting the Jaguar.
[75] In cross-examination by Ms. Goldlist, Detective Cattle indicated that none of the Hess Village videos were shown to any of the witnesses. The Moore brothers were not asked to identify Tyler Johnson or themselves.
[76] Detective Cattle’s recognition of the persons at Hess Village was based on his opinion of who the people were after viewing the other videos at the scene of the shooting. He did not ask for identification assistance from the certified forensic video analyst, Officer Plaxton.
[77] Detective Cattle told Officer Plaxton that these are the people and we need to track them. Detective Plaxton is not a certified forensic video analyst and is not an expert in video analysis.
[78] Detective Cattle did not organize the timing of events based on a police theory and Officer Plaxton put it into chronological order. For example, it made sense to see someone on the outside of Tim Horton’s enter the doorway and then to move to the inside video to show their movements.
[79] The composite video is a compilation of the videos as the events happened. There were no videos of the inside of the Smoke’s Poutinerie and the police were limited to what they had access to. Nothing happened in the segment that was added to the composite video after the preliminary but it was added to show everything that was going on.
[80] Detective Cattle had access to mug shots but Brandon was easy to identify due to the unique Indiana Jones bag he was wearing. The Hess Village and Plaza videos are different as the Hess Village videos are difficult to make out.
[81] Regarding cross-examination by Ms. Page, the names and subtitles are in the composite video because Detective Cattle asked Officer Plaxton to do it.
[82] In cross-examination by Mr. Dorsz, Detective Cattle indicated that the purpose of the composite video was the chronology and time line of events. The first clip starts with Ricky Moore and Tyler Johnson and the second clip at Queen Street shows Tyler Johnson talking to Amanda Marucci. There is no circle around Ms. Marucci as she is not part of the group that ends up at Vida La Pita.
[83] After Tyler Johnson is shot and has collapsed, there is no video in the composite showing the resuscitation efforts of Tyler Johnson or Justin Moore attending to him and then leaving. Justin stepped over him. It was suggested this was excluded as it had nothing to do with proving the accused guilty but Detective Cattle denied that.
LAW
[84] The leading case in this area is R. v. Nikolovski 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197 where the Supreme Court of Canada held, at paras. 28, 29 that once it is established that a videotape has not been altered or changed and that it depicts the scene of the crime, then it becomes admissible and relevant evidence. The degree of clarity and quality of the tape and to a lesser extent the length of time the accused appears on the video go towards establishing the weight which a trier of fact properly places on the videotape.
[85] Videotape evidence is a derivative of photographic evidence. In R. v. James, [2015] ONSC 3902, Justice Clark provides a useful summary of the law regarding photographs/videotapes at paras. 33, 34:
33 A helpful précis of the law as it relates to the authentication of proffered photographic evidence can be found in R. v. Andalib-Goortani, 2014 ONSC 4690, 13 C.R. (7th) 128, where, at para. 28, Trotter J. stated:
The leading Canadian case on authenticating images is R. v. Creemer and Cormier, 1967 CanLII 711 (NS CA), [1968] 1 C.C.C. 14 (N.S.S.C. App. Div.). McKinnon J.A. noted the following requirements for authentication at p. 22:
All the cases dealing with the admissibility of photographs go to show that such admissibility depends upon (1) their accuracy in truly representing the facts; (2) their fairness and absence of any intention to mislead; and (3) their verification on oath by a person capable of doing so.
This formulation has been widely accepted in many subsequent decisions and by numerous commentators: see, for example, R. v. Maloney (No. 2) (1976), 1976 CanLII 1372 (ON SC), 29 C.C.C. (2d) 431 (Ont. Co. Ct.), R. v. Penney, 2002 NFCA 15, [2002] N.J. No. 70 supra, R. v. Schaffner (1988), 1988 CanLII 7108 (NS CA), 44 C.C.C. (3d) 507 (N.S.C.A.), at pp. 509-511, R. v. J.S.C., 2013 ABCA 157, [2013] A.J. No. 455 (C.A.), R. v. Adams (2011), 2011 NSCA 54, 274 C.C.C. (3d) 502 (N.S.C.A.), Sydney N. Lederman, Alan W. Bryant and Michelle K. Fuerst, The Law of Evidence in Canada, 4th edition (Toronto: LexisNexis, 2014), at pp. 44-45 and pp. 1294-1296, David Watt, Watt's Manual of Criminal Evidence, 2013 (Toronto: Thomson Reuters, 2014), at p. 88 and David Paciocco, The Law of Evidence, 6th ed. (Toronto: Irwin Law, 2011), at p. 462.
34 Earlier, at para. 25, Trotter J. observed that photographic evidence is neither presumptively inadmissible nor presumptively admissible; rather, it is "conditionally admissible", i.e.: "[c]ertain pre-conditions must be 'established' on the basis of 'some evidence' before a photograph is admissible..." In the next paragraph, he went on to say:
This proposition is demonstrated in R. v. Nikolovski (1996), 1996 CanLII 158 (SCC), 111 C.C.C. (3d) 403 (S.C.C.), in which the Court considered the admissibility of videotape evidence. Writing many years ago, Cory J. said the following at p. 416:
Once it is established that a videotape has not been altered or changed, and it depicts the scene of a crime, then it becomes admissible and relevant evidence. Not only is the tape (or photograph) real evidence in the sense that that term has been used in earlier cases, but is to a certain extent, testimonial evidence as well.
[86] In R. v. Zoraik, [2012] BCCA 283, the British Columbia Court of Appeal dealt with the admissibility of a composite video drawn from a variety of other videos. The court held at paras. 17, 18, 19, 22:
17 As earlier described, the video footage of Mr. Zoraik in the Victoria courthouse on May 6, 2009, was gathered into a composite video and introduced into evidence. Mr. Zoraik contends that the composite video is misleading because it is made of footage from several cameras and because several cycles of the camera trained on Room 218 during the critical time are missing. With respect to the compilation of footage into one sequence, he contends the criteria for admission established by R. v. Nikolovski are not met.
18 In Nikolovski the Supreme Court of Canada addressed the admissibility of videotape evidence. Justice Cory for the majority held that videotape is admissible provided it is of good quality, gives a clear picture of the events in issue, and has not been changed or altered.
19 Mr. Zoraik does not dispute the admissibility of the raw footage from the cameras, but argues that the composite videotape was not admissible and should not have been relied upon by the judge. He complains that the reasons for judgment do not refer to the fact that in order to see what happened in Room 218 one must view two full cycles of the camera, the whole length of which was not included on the composite video. This, he says, demonstrates impermissible altering of the videotape contrary to the requirements for its admission as described in Nikolovski. He says the failure to comment on this need for two full cycles of the camera in the reasons for judgment renders them inadequate and the decision reversible.
22 At the hearing of this appeal we viewed the compiled video footage. The judge's description of it in the above paragraph accurately summarizes its contents at the time Mr. Zoraik was in Room 218. I do not consider that the fact of compilation into a single exhibit, accompanied by the limiting description given by the judge, takes the exhibit outside the criteria for admissibility: there is no suggestion the video portions assembled were altered in any fashion; there is no error demonstrated in the judge's description of the evidence; and there is no demonstrated misunderstanding of the nature of the composite exhibit.
[87] In R. v. Maloney (No. 2) 1976 CanLII 1372 (ON SC), [1976] O.J. No. 2446 (Ont. Co. Ct.) slow motion video was held not to be admissible as the timing of reactions was a material issue and a video showing the events in slow motion would not accurately or truly portray the sequence of events.
[88] Regarding expert evidence, the leading case is R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 where the Supreme Court of Canada held that the admissibility of expert evidence depended on four factors: 1) relevance; 2) necessity in assisting the trier of fact; 3) the absence of any exclusionary rule; and 4) a properly qualified expert. See para. 17.
[89] In the recent case of R. v. Sekhon, 2014 SCC 15, 2014 1 S.C.R. 272, Justice Moldaver held at paras. 43-48:
Requirements for Expert Opinion Evidence
43 As set out R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, at pp. 20-25, and affirmed in R. v. J.-L.J., 2000 SCC 51, [2000] 2 S.C.R. 600, and R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275, the admission of expert evidence depends on the following criteria: (1) relevance; (2) necessity in assisting the trier of fact; (3) the absence of any exclusionary rule; and (4) a properly qualified expert.
44 With respect to the "relevance" criterion, Mohan states that the judge must conduct a cost-benefit analysis to determine "whether its value is worth what it costs" (p. 21, quoting McCormick on Evidence (3rd ed. 1984), at p. 544). The cost-benefit analysis requires the judge to balance the probative value of the evidence against its prejudicial effect (Mohan, at p. 21).
45 As for the "necessity" criterion, Mohan holds that "[i]f on the proven facts a judge or jury can form their own conclusions without help, then the opinion of [an] expert is unnecessary" (p. 23, quoting Lawton L.J. in R. v. Turner, [1975] 1 Q.B. 834, at p. 841). The Court went on to note that the concern "inherent in the application of this criterion [is] that experts not be permitted to usurp the functions of the trier of fact" (p. 24).
46 Given the concerns about the impact expert evidence can have on a trial - including the possibility that experts may usurp the role of the trier of fact - trial judges must be vigilant in monitoring and enforcing the proper scope of expert evidence. While these concerns are perhaps more pronounced in jury trials, all trial judges - including those in judge-alone trials - have an ongoing duty to ensure that expert evidence remains within its proper scope. It is not enough to simply consider the Mohan criteria at the outset of the expert's testimony and make an initial ruling as to the admissibility of the evidence. The trial judge must do his or her best to ensure that, throughout the expert's testimony, the testimony remains within the proper boundaries of expert evidence. As noted by Doherty J.A. in R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, at para. 62:
The admissibility inquiry is not conducted in a vacuum. Before deciding admissibility, a trial judge must determine the nature and scope of the proposed expert evidence. In doing so, the trial judge sets not only the boundaries of the proposed expert evidence but also, if necessary, the language in which the expert's opinion may be proffered so as to minimize any potential harm to the trial process. A cautious delineation of the scope of the proposed expert evidence and strict adherence to those boundaries, if the evidence is admitted, are essential. The case law demonstrates that overreaching by expert witnesses is probably the most common fault leading to reversals on appeal.... [Emphasis added; citations omitted.]
47 The trial judge must both ensure that an expert stays within the proper bounds of his or her expertise and that the content of the evidence itself is properly the subject of expert evidence.
48 It is foreseeable that mistakes will be made and that, as happened in the instant case, testimony that strays beyond the proper scope of the expert evidence will be given. It is also foreseeable that defence counsel may fail to object to the testimony at the time the problematic statements are made. In a jury trial, once the statements have been made, it may be somewhat more difficult to address the problem - but a remedial instruction advising the [page 290] jury to disabuse their minds of the inadmissible evidence will generally suffice. Judges, on the other hand, are accustomed to disabusing their minds of inadmissible evidence. It goes without saying that where the expert evidence strays beyond its proper scope, it is imperative that the trial judge not assign any weight to the inadmissible parts.
[90] Regarding the necessity criterion, mere helpfulness is too low a standard to warrant accepting the dangers inherent in the admission of expert evidence. The expert evidence must be necessary in order to allow the fact finder: (1) to appreciate the facts due to their technical nature, or; (2) to form a correct judgment on a matter if ordinary persons are unlikely to do so without the assistance of persons with special knowledge. See R. v. D.D. 2000 SCC 43, [2000] 2 S.C.R. 275 at para. 47.
[91] While an expert is entitled to state the basis for their opinion and while this may include hearsay, this in no way removes from the party tendering the evidence the obligation of establishing, through properly admissible evidence, the factual basis on which such opinions are based. Before any weight can be given to an expert’s opinion, the facts upon which the opinion is based must be found to exist. See R. v. Abbey 1982 CanLII 25 (SCC), [1982] 2 S.C.R. 24. For both Crown and defence opinion evidence, the more the expert relies on facts not proved in evidence, the less weight the jury may attribute to the opinion. The corollary is also true: the more the expert fails to consider relevant facts, the less weight the jury may attribute to the opinion. See R. v. Collins 2001 CanLII 24124 (ON CA), [2001] O.J. No. 3894 (C.A.) at para. 46.
[92] Regarding issue #2, the Crown seeks to add to the composite video several items that are not in the raw videos. This includes: (1) circles around certain individuals captured in some of the videos; (2) commentary as to who those individuals are and in some cases, where they are going; (3) references to names of establishments on the videos; and (4) a running accurate time clock on the raw videos that do not contain accurate time and the effect is equivalent to “synchronizing watches.”
[93] The additions transform the raw videos from direct evidence into the modified composite video and this is a form of demonstrative evidence. Demonstrative evidence can be in the form of pictures, photographs, diagrams, charts, labels and video reconstructions. See R. v. Hall and Rose 2014 ONSC 3978 (S.C.J.) at paras. 34 – 36.
[94] In Hall and Rose, the video was tagged so as to identify the individuals in the video. This procedure was designed to rectify the problem that at times it was difficult to identify certain individuals due to the recordings not being very clear. Justice Henderson held that the tagged video was not admissible as: (1) the individual who was identifying the individuals had some evidentiary weaknesses; (2) the video reinforced the theory of the Crown as there was no way to remove tags or add tags by the defence; (3) the result would be that the jury would not be provided with a fair and balanced view of the evidence; (4) the tag relating to a non-party witness unduly emphasized the evidence of that non-party witness; and (5) in the result, the probative value of the evidence was exceeded by its prejudicial effect. Accordingly, the tagged video was not admissible. See Hall and Rose at paras. 37 - 46.
[95] In R. v. O’Loughlin, [2017] ONCA 89, the case for the Crown basically consisted of a video seized from the detention centre. A police officer, familiar with the alleged participants and the place where the events occurred, narrated the video as it was played before the jury. Still photographs from the video were also filed as exhibits at the trial. The Court of Appeal reviewed the video and found it provided a sufficient evidentiary basis for the conviction of the accused on a charge of assault causing bodily harm.
[96] In my opinion, the composite video is a form of demonstrative evidence. In R. v. Walizadah, 2007 ONCA 528, Justice MacPherson in dealing with video re-enactment evidence indicated that the preferable approach is to recognize the dangers of video re-enactment evidence but to adopt a case by case approach and the overriding principle should be whether the prejudicial effect of the video re-enactment outweighs its probative value. Considerations include whether the video re-enactment: (1) is accurate or inaccurate in the circumstances of the case; (2) the court must be sensitive to how a video re-enactment depicts only the Crown’s version of disputed facts and thus distorts the jury’s decision making (i.e. a one-sided account of disputed facts is to be avoided) and thus prejudices the accused’s right to a fair trial; (3) how relevant the experiment evidence is to an issue in the case and in most cases, the degree of similarity between the replication and the original event; (4) whether what the video portrays can be verified under oath; and (5) the overriding principle is whether a judge, after a balancing process, can determine whether the prejudicial effect outweighs any probative value.
[97] In the recent case of R. v. Kanagasivam, [2016] ONSC 2250, my former colleague from Brampton, Justice Fairburn was dealing with PowerPoint presentations being forwarded by the Crown and provides a useful summary of the law regarding demonstrative evidence and what is and is not admissible at paras. 36 - 57 and paras. 73, 74:
Initial Ruling
36 The PPTs as originally created were problematic and I excluded them from evidence and precluded the Crown from using them in its closing address.
37 We have been living in the age of technology for some time and it has come to define much of what we do and how we do it. The march of technology has played out in all aspects of life. The justice system is no stranger to this reality. Today, technology is used to create evidence, technology is used to gather evidence and technology is used to elicit evidence. The copious cell phone evidence in this trial is an example of these 3 aspects of technology and law at work.
38 Undoubtedly, technology can be a powerful tool in a criminal courtroom. When used correctly, it can streamline criminal proceedings and allow for easier comprehension of vast quantities of evidence. There is nothing wrong, and much right, with using technology in the courtroom to achieve these laudable objectives. At the same time, we have to ensure that the lure of technology does not serve to overtake long-standing and critically important rules of evidence. Like anything, where technology is used to create evidence for and elicit evidence in the criminal courtroom, we must ask the basis of admissibility. Ultimately, the probative value of the evidence must outweigh its potential prejudicial impact.
39 The use of PPT in a courtroom is not novel. Indeed, a PPT was used without objection in this case. At the outset of Ms. Jackson's evidence, she used one to educate the jury respecting the general workings of the Rogers cellular network and the customer records maintained by Rogers. PPT presentations are an important means by which to package and present information. As Heeney J. noted in R. v. Sandham, 2009 CanLII 58982 (ON SC), [2009] O.J. No. 4517 (S.C.), at para. 22, aff'd on other grounds 2015 ONCA 250, PPT presentations have become a "norm in virtually any class at university".
40 Just because PPTs are helpful educational tools, though, does not mean they are admissible in evidence. The basis of admissibility must be explored. Here, the Crown argued that the PPTs were demonstrative aids.
41 There are different forms of demonstrative or illustrative evidence. Sometimes a chart or summary will be produced to assist the trier of fact with organizing and clarifying evidence already filed. As noted in S.C. Hill et al., McWilliams' Canadian Criminal Evidence, 5th ed., Toronto: Canada Law Book, 2013 (loose-leaf updated 2015, release 4), at 23:30:60, demonstrative aids are sometimes used to "effectively synthesize...[c]umbersome and confusing evidence". This type of evidence, such as a schedule or summary, may be admitted to assist the trier of fact in understanding and evaluating evidence already filed. The usefulness of the summary will depend on whether the trier of fact accepts the proof of facts upon which the summary rests.
42 For instance, in cases where a large body of documents have been filed, a party may wish to have them summarized so that their salient and germane points are teased out: see R. v. Scheel (1978), 1978 CanLII 2414 (ON CA), 42 C.C.C. (2d) 31 (Ont. C.A.). Using demonstrative aids of this nature can serve to truncate what might otherwise take days of evidence to amplify. It can also ease the jury's task by abbreviating what could be countless hours spent wading through and distilling data during the fact finding process.
43 Where evidence has been properly adduced at trial, summaries of that evidence can be prepared to assist the trier of fact with understanding the entire picture represented by the voluminous documents. As noted in Wigmore on Evidence, J.H. Chadbourn rev. (Boston: Aspen Publishers Inc., 1972), Vol. 4, at p. 535:
Where a fact could be ascertained only by the inspection of a large number of documents made up of very numerous detailed statements -- as, the net balance resulting from a year's vouchers of a treasurer or a year's accounts in a bank ledger -- it is obvious that it would often be practically out of the question to apply the present principle by requiring the production of the entire mass of documents and entries to be perused by the jury or read aloud to them. The convenience of trials demands that other evidence be allowed to be offered, in the shape of the testimony of a competent witness who has perused the entire mass and will state summarily the next result. Such a practice is well established to be proper.
See also: S.C. Hill et al., McWilliams' Canadian Criminal Evidence, at 23:30:60.
44 Allowing for summaries to be filed, though, does not alleviate the trier of fact from accepting the facts upon which the summary rests. As Martin J.A. warned in Scheel, the usefulness of summaries depends entirely on "the acceptance by the jury of the proof of the facts upon which the summaries are based": see Scheel, at para. 13.
45 A demonstrative aid that distils a large amount of information previously admitted in a trial, can serve multiple purposes, which include: (1) promoting trial efficiency; (2) organizing information already received in the trial; (3) decreasing the potential for confusion among the triers of fact; and (4) streamlining the task of the triers of fact.
46 There is some precedent for a PPT presentation being used to plot cell tower and phone information. In R. v. Hamilton, 2011 ONCA 399, leave ref'd [2011] S.C.C.A. No. 511 (Hamilton), a case involving the heavy use of cell tower location evidence to establish identity, the court commented upon the use of PPTs to summarize the cell phone records. After witnesses from three phone providers testified, and records had been filed, the tower information from the records was distilled into PPT presentations. An officer was put on the stand to testify about the content of the PPTs. The court commented that the jury would have had no difficulty in understanding the cell phone evidence once it had been summarised in PPT format: see Hamilton, at paras. 265, 282.
47 In long, complex cases, a trial judge has the discretion to allow summaries and aids to go to the jury to assist them with understanding the evidence "reasonably, intelligently and expeditiously": see R. v Basi, 2010 BCSC 713, at para. 9.
48 Assistance should be given to a jury where review of the evidence by them would be cumbersome, unduly time consuming, and confusing. Jurors are selected to assess the facts of a case, not so that they can be tested on their abilities to locate needles in haystacks. Any tools that they can be provided to perform their role as fact finders, fairly, with an even hand, and in accordance with the rules of evidence, should be accommodated. As noted by Doherty J.A. in R. v. Poitras, 2002 CanLII 23583 (ON CA), [2002] O.J. No. 25 (C.A.), at para. 46, albeit in the context of providing written instructions to jurors, "[j]uries need whatever help judges can give them".
49 Demonstrative or illustrative aids in the form of summaries of otherwise admissible and admitted evidence are not meant to be tools for advocacy or to paint a picture of one party's position: see R. v. Myles, [2011] O.J. No. 6686 (S.C.). Rather, they are meant to facilitate juror comprehension of the facts by clarifying and distilling them into a manageable and understandable format.
50 I found that the originally proposed PPTs contained numerous flaws. While they were meticulously prepared by the analyst, in accordance with instructions given, and with great attention to detail, the end product resulted in something that I found could confuse and potentially mislead the jury.
51 First, I found the end product somewhat confusing. The sample page set out earlier in my reasons gives a glimpse into what the PPT slides looked like: multiple dots, dots over dots, lines over lines, with no sense of direction, time, or space.
52 Second, while I am sure that it was entirely unintentional, I agree with defence counsel that the originally proposed PPTs had the potential to be misleading. By way of example, by placing dots over dots, they left the impression that certain accused were at the same place at the same time, when in fact they may have used the same tower minutes and even hours apart. The lines crossing lines left the impression that accused crossed paths during the night or may have even been in the same exact location at the same time. Having so many coloured dots on each slide, ostensibly distinguished in some cases by only slight differences in shade, could leave the jury with a misunderstanding as to which phone was using which tower at which time.
53 Third, the legends contained on the slides referred to the names of accused that the Crown maintained were using phones on the night in question. As shown on the sample page reproduced earlier in my reasons, a number was always followed by a name. The reality is, though, that there was no telling whether an accused or former accused was using his phone, or even if it was in fact his phone, at the time in question. These things were squarely in dispute in the case, yet the legends on the slides could make it appear that the phones were in fact being used by each of the accused and former accused. While it was open to the jury to draw this inference, it was far from a foregone conclusion. As indicated above, identity was the crucial issue in this trial.
54 Fourth, the PPTs assumed facts. Beyond creating the visual appearance of assuming what accused were using what phones during a particular event, they also assumed when particular events occurred. Some witnesses were only able to give a window of time within which an event occurred. By placing the events in what was said to be chronological order, assumptions about times were made that did not necessarily accord with fact. Where this occurred, the assumptions accorded more with what the Crown's position was about the timing of an event. By doing this, in some situations, the PPTs reinforced what was in dispute in the case and what was critically important to the core question of identity.
55 Fifth, the PPTs gave a complete roadmap to the Crown's case. By plotting the times that events were said to take place, relative to cell tower usage, truck movement and so on, they gave the jury a window into what the Crown would say (and did say) during its closing address. As noted by Boswell J. in R. v. Pan, [2014] O.J. No. 5969 (S.C.) [Pan 1], who carefully analysed a similar admissibility issue, there is a level of unfairness involved in allowing the Crown two closing addresses: Pan 1, para. 67. Had the PPTs, as they originally appeared, been played for the jury, they would have been tantamount to a closing address.
56 As above, while the Crown agreed that they would not play the PPTs during the evidentiary portion of the trial, the Crown wanted them marked as an exhibit and to go back to the jury room. Every case is unique. In this case, among other things, given how the PPTs were created and what they depicted, what evidence they relied upon, and what evidence was in dispute, allowing the PPTs in their original format into the jury room would be the equivalent of having the Crown's closing argument in the jury room during deliberations. In this case, this would not be fair.
57 The PPTs were ruled inadmissible.
73 In the end, the jury needed assistance in distilling the records filed. There were simply too many records to reasonably ask the jury to go through them, line-by-line-by-line, and ask them to then turn between multiple documents to determine locations and subscriber information. The prospect of spending a great deal more court time, delving further into this microscopic evidence, seemed antithetical to concerns over trial economy. In the end, Mr. Sachdeva's evidence could be (and was) led quickly and efficiently. The evidence would leave the trier of fact with a clear understanding of how the PPTs were prepared and how they should be approached. This could be and was complemented by instructions to the jury about how to approach the PPTs.
74 The final PPTs did not assume things that the jury had to find as fact. They did not advance one side's position. Rather, they distilled information that was otherwise admissible and admitted in the trial. It eliminated what would otherwise have necessitated weeks of additional trial time and additional confusion arising from the plethora of records in evidence.
[98] Objection was taken by defence counsel that a large portion of the evidence of Officer Plaxton was not expert or opinion evidence but was lay testimony. In Collins, Justice Charron noted that the firearms expert who did the experiment of firing the gun in that case, had the expertise to set up the experiment but the gist of it did not require any special expertise: “it simply consisted of his observations when the sixteen shots were fired into the lake.” The essence of the expert’s evidence was factual in nature and was not subject to the general rule with respect to opinion evidence. Its evidence was based on its relevance and materiality, subject to the trial judge’s general power to exclude the evidence on the basis of prejudice. See Collins at paras. 34 - 39.
[99] Justice Charron in Collins discussed the difference between fact and opinion at paras. 16 - 21:
- The law on the admissibility of experiment evidence
16 Despite the fact that experiment evidence is often, and at times routinely, admitted at trials, there is a paucity of Canadian jurisprudence relating to this kind of evidence. Perhaps this is explained by the fact that experiment evidence often goes unrecognized for what it is: in some cases, it consists of mere factual evidence, much like any other sworn testimony; in other cases, it is a combination of factual and opinion evidence. In either situation, its admissibility is governed by well-established rules of evidence. Indeed, in my view, the key to determining the admissibility of experiment evidence is to keep in mind this distinction between fact and opinion as it is understood in the law of evidence. I will briefly review the applicable principles of law.
17 In the law of evidence, an opinion means an "inference from observed fact": see R. v. Abbey (1982), 1982 CanLII 25 (SCC), 68 C.C.C. (2d) 394 at 409. As stated in Abbey, as a general rule, witnesses testify only as to observed facts and it is then up to the trier of fact to draw inferences from those facts. A lay witness will be permitted to give an opinion only with respect to matters that do not require special knowledge and in circumstances where it is virtually impossible to separate the facts from the inferences based on those facts. A witness testifying that "a person was drunk" is a common example of an opinion that can be provided by a lay witness. See R. v. Graat (1982), 1982 CanLII 33 (SCC), 2 C.C.C. (3d) 365 (S.C.C.) for a review of the law on non-expert opinion. Otherwise, opinion evidence will only be received with respect to matters calling for special knowledge beyond that of the trier of fact. In those cases, an expert in the field may be permitted to provide the judge and jury with an opinion, that is "a ready-made inference which the judge and jury, due to the technical nature of the facts, are unable to formulate" (Abbey at 409). The law as to expert opinion evidence was authoritatively restated in Mohan, supra. Before expert opinion evidence can be admitted, the evidence: (a) must be relevant to an issue in the case; (b) it must be necessary to assist the trier of fact; (c) it must not be subject to any other exclusionary rule; and (d) it must be given by a properly qualified expert.
18 A witness' testimony as to observed facts is, of course, subject to the general principles governing the admissibility of any evidence: relevance and materiality. Relevance is established at law if, as a matter of logic and experience, the evidence tends to prove the proposition for which it is advanced. The evidence is material if it is directed at a matter in issue in the case.[^1] Hence, evidence that is relevant to an issue in the case will generally be admitted. Indeed, it is a fundamental principle of our law of evidence that any information that has any tendency to prove a fact in issue should be admitted in evidence unless its exclusion is justified on some other grounds: see R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670 at 715; Morris v. R., 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190 at 201; and R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577 at 609.
19 The grounds that justify the exclusion of evidence that is otherwise relevant and material form the basis of many of our more specific rules of evidence. The rule against hearsay, the opinion rule and the similar fact rule are a few examples. Quite apart from these specific rules, evidence that is otherwise relevant and material may also be excluded by the exercise of the trial judge's general power to safeguard the fairness of the proceedings. Our law of evidence recognizes the general power of a judge to exclude relevant and material evidence where its probative value is outweighed by the prejudice caused by its admission, provided that where the evidence is tendered by the defence, it should not be excluded on that basis unless the prejudice substantially outweighs the value of the evidence: see Seaboyer, supra, at 390; and R. v. S.C.B. (1997), 1997 CanLII 6319 (ON CA), 119 C.C.C. (3d) 530 at 541 (Ont. C.A.). Prejudice in this context does not mean, of course, that the evidence will be detrimental to the other party's position. Rather, it is related to the detrimental effect that the evidence may have on the fairness and the integrity of the proceedings. For example, the evidence may not be worth receiving if its reliability is clearly outweighed by its potential to mislead or confuse the trier of fact. The evidence could also be excluded where its admission would involve an inordinate amount of time that is not commensurate with its value. See Mohan, supra, at 411.
20 These general principles apply to experiment evidence. A pre-trial experiment can be as simple as driving from one location to another to determine the time it takes to cover the distance in order to substantiate or disprove an alibi, or driving along a particular stretch of road to determine at what point a stop sign becomes visible. The evidence in such cases, provided that it is relevant to an issue in the case, will usually be admitted without argument. It is entirely factual, and its admissibility is only subject to the general principles of relevance, materiality and discretion as discussed earlier. In other cases, the pre-trial experiment may be more complex, requiring particular technical or scientific knowledge to perform, and it may also form the basis of expert opinion evidence in the interpretation of the results. In such cases, the experiment evidence, in so far as the observed facts are concerned, will be subject to the usual principles of relevance, materiality and discretion but, in addition, to the extent that it includes inferences from observed facts, the opinion rule will come into play. In order to be admissible, that part of the experiment evidence that constitutes opinion evidence will have to meet the criteria in Mohan.
21 In a nutshell, experiment evidence, if it is relevant to an issue in the case, should generally be admitted, subject to the trial judge's residuary discretion to exclude the evidence where the prejudice that would flow from its admission clearly outweighs its value. Beyond this, when the evidence requires the making of inferences from observed facts that require special knowledge, the test in Mohan will have to be met before the evidence can be admitted as expert opinion evidence.
ANALYSIS – ISSUE #1 – CROWN APPLICATION ALLOWING INTO EVIDENCE THE COMPOSITE VIDEO
[100] Many of the raw videos incorporated into the composite video have already been tendered into evidence including Exhibits 2, 2A (Vida La Pita) 3, 3A (Big Bee), 9 (Tim Horton’s interior), Exhibit 19 (King West Motors), Exhibit 20 (Staybridge Hotel), Exhibit U excerpt (CCTV video showing Joshua entering a cab near King and Hess). These raw videos are generally of a good quality and there is no evidence that there has been any alterations or changes to the raw videos. The date time stamps of the raw videos vary widely and some appear to vary in times by an hour or so but all were taken on November 30, 2013.
[101] Brandon, Joshua and Louis have made a number of admissions regarding identity and have admitted that they are depicted in the raw videos on a variety of occasions. See Exhibits 10, 11, 12.
[102] In addition, a number of witnesses at the trial thus far have identified a number of the accused on the raw videos. For example, Detective Gibson has identified Brandon on the raw Big Bee video; Jessica Riley has identified Louis on the raw Tim Horton’s video.
[103] The victim Tyler Johnson and his friend Ricky Moore were identified by Mallory Turco on the raw Vida La Pita video; the victim Tyler Johnson was also identified by Jessica Riley on the raw Vida La Pita video.
[104] Tariq Ahmad, Mallory Turco, Scott LaPointe, Lindsay Bruder-Grant, Michael Runions, Abdul Qadri were able to identify events as they were transpiring on the raw videos. Mr. Ahmad was able to identify his taxi and his leaving when he heard a click; Ms. Turco was able to identify her car and her leaving the scene after she saw a commotion and then saw Ricky Moore and Tyler Johnson running with Tyler running to Tim Horton’s and collapsing there; Scott LaPointe was able to identify himself and his wife on the Exhibits 19 and 20 raw videos at a time proximate to the shooting of Tyler Johnson; Ms. Bruder-Grant was able to see, on Exhibit 20, a dark car (presumably Joshua’s car) leave the area of the shooting and turn onto Caroline Street at a high speed. Ms. Bruder-Grant indicated the raw videos accurately reflected what she saw. Michael Runions recognized himself on the raw Vida La Pita video and described the events of the shooting, which he was an eyewitness to. Mr. Runions also recognized his fleeing into the Big Bee store so that he would not be shot. Abdul Qadri confirmed that he picked up a man at about 3 a.m. as depicted in Exhibit U to which Joshua has admitted to being that man.
[105] Officer Plaxton took these raw videos that have been entered as exhibits along with the CCTV videos and an outside Tim Horton’s video and an inside Tim Horton’s video and made the composite video that is 39 minutes in length. There were a total of 84 hours of videos collected by the police.
[106] The composite video is simply a compilation of the raw videos. Officer Plaxton testified that he made no changes to the raw videos themselves. I agree that the raw videos that have been entered as exhibits have been simply transferred onto the composite video without any changes or alterations other than the additions regarding circles, commentary, description of businesses and the running time clock which I will deal with separately under the issue #2 section.
[107] Regarding the Tim Horton’s outside video, it is out of focus and Officer Plaxton has made an attempt to improve its clarity but this attempt has failed and accordingly the video on the composite is substantially the same as the original raw video.
[108] These raw videos without additions (there were no circles, commentary, restaurant names and running time clock) were compiled and entered into evidence at the preliminary hearing as Exhibit 31 and it is Exhibit V4 at this voir dire. The only difference between Exhibit V4 and the current composite, aside from the additions referred to, was the addition of a further 10 minute raw CCTV video that had nothing happening on it but presumably was added to eliminate time gaps in the CCTV videos.
[109] The raw videos tendered thus far and the videos to come have not been altered or changed and they depict the scene of the crime and many aspects of the crime itself. Accordingly, the raw videos are admissible and relevant evidence. See Nikolovski at paras. 27, 28 and James at paras. 33, 34.
[110] Many of the videotapes entered into evidence have been established, on the evidence, thus far to be accurate in truly representing the facts, have been fair without any intention to mislead and numerous aspects have been verified by witnesses capable of doing so. See James at paras. 33, 34. Perhaps the only exception is the infrared video where the colours of at least two of the accused are not accurate while they are huddled in the corner of the Big Bee. This video is already in evidence and with the explanation provided by Officer Plaxton, I do not believe the jury would be confused by this inaccurate portrayal of the colour of the clothing of at least two of the men in that video.
[111] As in Zoraik, there is no suggestion that the composite video that was assembled altered the raw videos and in my opinion, the composite organizes the raw videos in a fashion that assists the fact finder as it did in Zoraik. The defence pointed out that Zoraik was a judge alone case and submitted that judges can deal with prejudicial evidence better than juries. Either evidence is relevant and admissible or not. No case was provided to me that establishes that the principles of admissibility are different depending on whether it is a judge alone or a jury case.
[112] There is no doubt that the organization of the raw videos into the composite video has significant probative value. The question then becomes as to whether there is any prejudice flowing from the organization of a selection of the raw videos into a composite video.
[113] The composite video is an accurate reproduction of the raw videos. The composite video is not a depiction of the Crown’s version of disputed facts; it is an organization of accurate raw videos that is put into a chronological timeline give or take two minutes (see discussion in the issue #2 section). In fact, the composite has the potential of assisting at least Joshua in his defence. His defence is based in part on his being shot at twice by Chad after Chad shoots Tyler Johnson. From the composite, it appears that there is a gap of at least 20-30 seconds between the shooting of Tyler Johnson and the leaving of Joshua’s Jaguar. This gap in time, especially with the addition of up to an additional one to two minutes, would allow the opportunity for the scenario being put forward by Joshua in his last two statements (the Crown now indicates that it will not rely on statement #3). Many parts of the raw videos have been confirmed by witnesses testifying under oath and the composite does not change the raw videos in any material way. The raw and composite videos have not been sped up or slowed down as in Maloney but are presented in their original form. The composite is relevant as it organizes the various raw videos into a chronology that the jury would attempt to put together in any event and the composite assists the jury in assessing the events leading up to the shooting, in assessing what happened when Tyler Johnson was shot and what happened immediately after. See Kangasivam at para. 45. Further, the dangers that are pointed out in Walizadah are not present in this composite.
[114] Ms. Goldlist in her cross-examination pointed out that it took varying times for Brandon and Mr. Johnson to travel from Hess Village to the Tim Horton’s. However, there is no video of the portion of King Street between Hess and Tim Horton’s. Had there been a video of that portion of King Street at that time, I agree it should be included but the absence of video that is no one’s design or fault cannot detract from the admissibility of the videos that do exist.
[115] The end product of the composite is not confusing. It is not misleading. It does not assume facts. There is no unfairness and may, as I have indicated, assist Joshua in his defence. The composite video does not rely on disputed evidence but relies on a number of raw videos, many of which have already been confirmed in many aspects by a number of witnesses. The composite does not assume things that the jury has to find as fact. It does not advance one side’s position at the expense of another. Rather, the composite distills the raw videos that have been otherwise ruled admissible and admitted at the trial. There are 84 hours of videos presumably with varying time stamps. The defence has had the bulk of the composite since the preliminary hearing was completed in June of 2015. The composite eliminates many hours of trial time that would be required to view 84 hours of videos. Accordingly, there is no prejudicial effect to this evidence. The composite does not have a detrimental effect on the fairness and integrity of the proceedings. Its reliability is not outweighed by any potential to mislead or confuse the trier of fact. The composite saves time as opposed to involving an inordinate time that is not commensurate with its value. The probative value of the composite outweighs any prejudicial effect and it is admissible in evidence. See Collins at para. 19 and Kanagasivam at paras. 73-75.
[116] The defence in cross examination did not refer to any material raw videos that had been left out of the composite. There was no video of the Hess Village area after Brandon and his friends left the area to go to the Vida La Pita and Big Bee Plaza. The Crown indicates that is because nothing happened there after Brandon and his friends left, an explanation that I accept. The only material raw video left out of the composite was the efforts to resuscitate Mr. Johnson after he collapsed at the Tim Horton’s doors. It is questionable as to the probative value that this evidence would have in determining the guilt or innocence of the accused. This evidence may arouse additional sympathy for Mr. Johnson and I see nothing unfair or misleading in not including this raw video in the composite.
[117] This brings me to one additional point. Many times when demonstrative evidence is tendered through a witness, such as a drawing or map, marks are made on it by a witness and in cross-examination, other marks can be added by the examiner and/or cross-examiner. See Exhibit 21 in this trial. In the tagged video in the Hall and Rose case, there was no way that the defence could physically remove tags or add to them. See Hall and Rose at para. 41. That is not the case here. Officer Plaxton testified that he could make changes to the composite within basically 24 hours. Accordingly, if the defence wished to add other raw videos such as the resuscitation efforts at the Tim Horton’s or any other relevant video in the 84 hours of videos, that could be accommodated fairly easily.
[118] I conclude that the defence are able to make additions to the composite and that is open to them through cross-examination. Officer Plaxton has already provided an excerpt of a video to counsel for Joshua. See Exhibit 17A. The defence has had the bulk of the composite since the preliminary hearing was completed in June of 2015 and has had complete disclosure of all 84 hours of video tapes. If there are any raw videos unfairly left out (and there is no evidence before me that has happened at this time), Officer Plaxton has indicated that changes to the composite can be made in a day.
CONCLUSION REGARDING ISSUE #1 – CROWN APPLICATION ALLOWING INTO EVIDENCE THE COMPOSITE VIDEO
[119] For the reasons provided, the composite video is admissible in evidence at this trial.
[120] It remains to be determined whether the additions made to the composite that are not on the raw videos should be admitted along with the composite.
ISSUE #2 – ADMISSIBILITY OF ADDITIONS TO UNDERLYING RAW VIDEOS IN THE COMPOSITE VIDEO
[121] Officer Plaxton indicated in his evidence that he is not familiar with any of the individuals that appear on the composite. He was not provided with any photos of the accused.
[122] The circles around individuals were made at the direction of Detective Cattle. The identification of individuals was based on what Detective Cattle told him. In the CCTV videos, the identification of individuals is difficult due to the distance of the camera from the people captured in the video. Google maps were not used to identify Smoke’s Poutinerie. Detective Cattle testified that he obtained his identification evidence that was put into the subtitles in the composite from a variety of other witnesses. Basically, the addition of the circles, the commentary regarding the identity of the individuals and where and what they were doing and the identification of the Smoke’s Poutinerie is hearsay from Detective Cattle that was provided to Officer Plaxton who put the information into the video. The identification sub-titles are in fact double hearsay: evidence from witnesses to Detective Cattle who in turn provided that information to Officer Plaxton. Officer Plaxton’s expertise as a certified forensic video analyst could have been used to assist in the identifications but it was not.
[123] Accordingly, this is not a situation such as O’Laughlin where the video and a running commentary were admissible because the officer, who gave the commentary, was familiar with both participants and the place where the events occurred.
[124] The addition, of the circles, the commentary and the identification of the Smoke’s Poutinerie, is subject to many of the same criticisms as in Hall and Rose as these additions are hearsay, have weaknesses in identification, emphasizes the theory of the Crown and in the result, these additions have prejudicial effect that outweighs the probative value.
[125] Accordingly, the circles, graphics, subtitles, the commentary regarding the identity of individuals and what they are doing and the naming of any businesses on the composite are not admissible and must be deleted from the composite that is currently Exhibit U.
[126] This leaves the addition of the running time clock on the composite video. Officer Plaxton testified, regarding the CCTV videos, that in his five year experience with CCTV videos, the time stamps are accurate and are checked regularly by Officer Amanda Vernon. In cross-examination by Ms. Page, it was established that the times on the Hess North CCTV video and the Hess King CCTV video showing the same event differed by approximately two minutes. Officer Plaxton explained that this was due to the fact that the two videos are generated by two different systems with separate DVRs. I find that, after reviewing the videos and considering the evidence of Officer Plaxton, that the time stamp or computer program on the CCTV videos are evidence of the accurate time, within a range of a time differential of up to two minutes.
[127] Regarding the other videos, Officer Plaxton has placed a running time clock on the composite video to demonstrate the accurate time. Accurate time is gained (plus or minus a minute) by accessing an accurate source of time. This is done best by resorting to a cell phone as cell phone times are generated by a service provider from the Research Council of Canada. For example, the Tim Horton’s video was determined to be off by ten minutes by looking at the caller who made the 911 call and comparing the times when the caller finished the 911 call on his cell phone to the time on the Tim Horton’s video.
[128] The time placed on the composite is accurate give or take a minute. For example, if the composite at channel 10 of the Tim Horton video says 2:58:56, the actual time is in a range of 2:57:57 to 2:59:55. As indicated in cross-examination by Ms. Page of Officer Plaxton, you could not exactly match up the time of a text call or a phone call to the exact second but you would be within a range of two minutes as indicated above.
[129] The time of the events leading up to the shooting, the shooting itself and the events immediately after the shooting has obvious relevance. As I have indicated, the timing of the length of events (as opposed to the exact time) is also an important issue particularly when considering the credibility of Joshua’s second statement that there was an argument involving Chad and Joshua and Chad fired two shots at Joshua. Accordingly, the time of events and the length of timing evidence is relevant and there is an absence of any exclusionary rule (Mohan requirements 1 and 3). The probative value of this evidence exceeds any prejudicial effect. See Mohan at para. 17 and Sekhon at paras. 43 - 48.
[130] Further, the procedures for obtaining the correct time and the placing of the correct running times on the composite video are items that an ordinary person would need assistance with from persons having special knowledge. An ordinary person would not know how to get exact times or an exact time that is in a range of two minutes around the correct time. Accordingly, this evidence from Officer Plaxton is within the scope of his expertise as a certified forensic video analyst. Accordingly, this evidence is necessary and is being provided by a properly qualified expert (Mohan requirements 2 and 4). The probative value of this evidence exceeds any prejudicial effect. See Sekhon at paras. 43-48 and D.D. at para. 47. The copying of the raw videos and placing them into a composite, apart from the time component, would not require any special expertise but as in Collins, an expert may testify both to a combination of factual and opinion matters. See Collins at paras. 34 - 39.
[131] Accordingly, the opinion evidence of the obtaining and placing of the correct times give or take two minutes on the composite video are admissible as the probative value of that evidence exceeds any prejudicial effect subject to adjustments that I am about to order.
[132] As discussed, the times currently on the composite are not exactly correct but are correct within a two minute window. It is misleading to have a running time clock showing the hour, minute, second, and hundreds of seconds. It gives the mistaken impression that the exact time is known and being displayed. It is also misleading to have inserts that give the impression that events are happening concurrently when they may be as much as two minutes apart. As indicated in Exhibits V5, V6 and V7 introduced by Ms. Page, the time stamps on the videos discussed in those exhibits show gaps in the seconds that are under a minute but can be up to almost two minutes. Officer Plaxton stated that it is technologically impossible to line up the seconds exactly. He tried to line up the videos as closely as possible. Officer Plaxton indicated that a number of the gaps could be eliminated by deleting the seconds entirely.
[133] Officer Plaxton also testified that one of the ways to deal with the time on the video is to have three running time clocks. This could be done by having the current time clock and another one that adds a minute and a third that subtracts a minute from the current time. Further, since the seconds are not exact, the clock can just state the hour and the minute. For example if the current time on the running time clock is 3:08:30, the time clock can be stated as 3:08 and the second time clock can be stated as 3:09 and the third as 3:07. On the evidence before me, the accurate time would be somewhere in that 3:07 to 3:09 range.
[134] Given the two minute differential as discussed above, the inserts are ordered to be removed and are to be placed in chronological order using the three time clocks as discussed above.
[135] Officer Plaxton relied on the notes and differential time preparation of Officer Wong in preparing the running time clock on the composite video. This reliance on Officer Wong’s work does not affect the admissibility of the expert opinion of Officer Plaxton as to the accuracy of the running time clock but the weight to be given to Officer Plaxton’s evidence regarding the running time clocks will be dependent on the factual basis provided by the evidence of Officer Wong. See Abbey.
CONCLUSION REGARDING ISSUE #2 – ADMISSIBILITY OF ADDITIONS TO UNDERLYING RAW VIDEOS IN THE COMPOSITE VIDEO
[136] The composite video with the running time clock is admissible in evidence with the following adjustments to be made: two further running time clocks are to be added with one adding a minute and the other subtracting a minute; the seconds on the running time clocks are to be deleted; the inserts are to be removed; the composite video is to be put into chronological order with the three running time clocks by Officer Plaxton as best he can using his expertise as a forensic certified video analyst.
[137] Any circles, graphics, subtitles, commentary regarding the identity of individuals and what they are doing and the naming of any businesses on the composite video are not admissible and must be deleted from the composite that is currently Exhibit U.
ORDER
[138] The composite video that is currently Exhibit U is admissible along with the addition of the running of the accurate time clock with the adjustments as suggested at paragraph 136.
[139] The additions to Exhibit U that are described in paragraph 137 above are to be deleted from the current Exhibit U.
[140] Once the adjustments described in the two paragraphs above have been completed, Exhibit U is admissible in evidence as a numbered exhibit at
this trial.
Skarica J.
Released: March 16, 2017
CITATION: R. v. Barreira et al. 2017 ONSC 1665
COURT FILE NO.: CR-15-4953
DATE: 2017-03-16
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
BRANDON BARREIRA, JOSHUA BARREIRA, CHAD DAVIDSON and LOUIS REBELO
REASONS FOR MID-TRIAL RULING – VOIR DIRE REGARDING ADMISSIBILITY OF COMPOSITE VIDEO
AS
Released: March 16, 2017
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