CITATION: R. v. Browne, 2017 ONSC 5054
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 02 02
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen v. Steven Browne, Amal Greensword and Adrian Williams
BEFORE: COROZA J.
COUNSEL: Alex Cornelius and Greg Hendry, for the Crown
Anthony Bryant and Anne Marie Morphew, for Mr. Browne; Nicole Rozier and Leah Gensey, for Mr. Greensword; and Maureen Addie and Jamie Kopman, Counsel for Mr. Williams
ENDORSEMENT
Overview
[1] On September 29, 2016, I delivered a ruling orally that permitted the Crown to ask Cst. Stephanie Melo certain questions about a Petro Canada gas station transaction that occurred on November 2, 2012 and was captured on surveillance video seized from the gas station on November 29, 2012.
[2] The Crown’s theory is that the male in the video is Steven Browne. The Crown will not ask Cst. Melo to provide an opinion as to whether the male in the video is Steven Browne. However, the Crown submits that it should be allowed to ask Cst. Melo to describe what she sees in the video as it is played in front of the jury and, in particular, what the male in the video is wearing.
[3] Ms. Morphew objects to this evidence. Counsel argues that Cst. Melo is in no better position than the jury to view the video and it is up to the jury to determine what is on the video without assistance from the witness.
Re-Opening of Ruling of September 29, 2016
[4] When I delivered the ruling on September 29, 2016, Mr. Bryant objected and stated that as a matter of procedural fairness counsel was not given the opportunity to argue the point with full submissions. Eventually, Mr. Bryant and Ms. Morphew requested leave to provide submissions on the issue and asked me to reconsider my ruling. The Crown did not object to this procedure.
[5] There is strong authority that a trial judge may, prior to the conclusion of trial proceedings, reconsider, re-visit and reverse prior rulings made on a voir dire. I am satisfied that leave should be granted and I have now had an opportunity to receive fulsome submissions from both parties (See R. v. Arens, 2016 ABCA 20 and R. v. Steeves (2011), 2011 NBCA 88, 286 C.C.C. (3d) 490 (N.B.C.A.).
[6] I reverse my previous ruling for the following reasons.
Analysis
(i) The Test for Recognition Evidence
[7] There is strong appellate authority that holds that a lay witness “may provide opinion recognition evidence that the image of a person displayed in the photograph or on a video recording is a particular individual known to them, provided that the witness has a ‘prior acquaintance’ with the individual being recognized and the witness is in a ‘better position’ than the trier of fact to identify the individual” (See the authorities reviewed by Campbell J. in R. v. Farah and Khattak, 2016 ONSC 2081 at para. 6; See also R. v. Berhe, 2012 ONCA 716).
[8] As I understand the test for receiving such evidence, a trial judge should generally perform a gate-keeping role and hold a voir dire. Ultimately, the admission of this evidence depends on the answer to two questions. The first question is whether the potential witness is sufficiently familiar with the person sought to be identified to have "some basis" for the opinion. The second question is whether this opinion will be helpful to the trier of fact because the witness has some advantage that can shed light on the evidence in question (See R v Berhe at para 21).
[9] In my view, there is no principled reason why this test does not apply in this case. While the Crown is not asking Cst. Melo to make an identification of Mr. Browne in the video, they are certainly asking the officer to comment as to the items of clothing that the male is wearing on the video.
(ii) Form of the Voir Dire
[10] I do not agree with Ms. Morphew that Cst. Melo must be produced on a voir dire to determine this issue. The form of the voir dire to determine the admissibility of evidence is a determination I must make on the basis of the issue involved and the nature of the case being tried. No specific procedure has to be followed to determine the admissibility of the evidence.
[11] In considering this issue, I have had the benefit of reviewing the preliminary hearing transcript. I do not agree that the defence was deprived of an opportunity to fully cross-examine Cst. Melo on this issue. Indeed, it is Mr. Webster (who acted for Mr. Browne at the preliminary hearing) who raised many of the questions about the articles of clothing worn by the male on the video. Given the nature of the issue here (i.e. the relevance of Cst. Melo's opinion), I am satisfied that the preliminary hearing transcript and the written submissions provide an adequate record for me to perform my gate-keeping function.
(iii) Application of the Test for Recognition Evidence
[12] Applying this test, I am satisfied that Cst. Melo is sufficiently familiar with the articles of clothing that Steven Browne wore on November 26, 2012, when she sat beside him in McDonalds. After reviewing her evidence at the preliminary hearing I am satisfied that she can articulate some basis for the opinion that the hat and the scarf seen on the Petro Canada video resembles the clothing she observed sitting in the McDonalds. In short, Cst. Melo was assigned to conduct surveillance of Mr. Browne and she testified at the preliminary hearing that Mr. Browne sat beside her and she was able to see him clearly.
[13] Ms. Morphew does not object to the admissibility of Cst. Melo's evidence relating to her surveillance of Mr. Browne. Again, the issue is whether Cst. Melo should be permitted to provide an opinion that the scarf and headwear worn by the individual in the Petro Canada gas station video resembled the scarf and Russian-style hat that she saw Mr. Browne wearing on November 26th.
[14] After careful reflection, I reverse my earlier ruling. Reduced to the essentials, Cst. Melo's evidence that the scarf and the headwear shown in the video is "similar" to what she saw Mr. Browne wearing on November 26, 2012, is not helpful to the trier of fact. It is my view that Cst. Melo is not better situated or more knowledgeable than the jury to shed light on what the male in the video is wearing. Further, to allow Cst. Melo to provide an opinion that the items of clothing in the video resemble what she saw Mr. Browne wearing on November 26th is more prejudicial than probative because the jury might infer that this lay opinion coming from a police officer should be given more weight than it deserves.
[15] I agree with Ms. Morphew that the jury will have the video as an exhibit and can watch the video as many times as they wish. With proper instructions, the jurors will have the appropriate tools as to what they make of the resemblance of any piece of clothing shown on the video to Cst. Melo's observations on November 26th. It is also important to observe that nothing precludes the Crown from arguing what is on the video and it is open for the jury to accept the Crown's position on these points.
[16] One cannot lose sight of the fact that the video itself is real evidence and is a silent, constant, unbiased witness with instant and total recall of all that it observed (See R. v. Nikolovski, 1996 SCC 158, [1996] 3 S.C.R 1197).
[17] As Ms. Morphew points out, the jury may review the evidence of this silent witness as often as desired in their jury room. Just as the law holds that the jury does not need an intermediary in the form of a human witness to make some identification on the video, this jury does not need Cst. Melo to provide an opinion that the articles of clothing worn by the male on the video resemble the items of clothing that Steven Browne wore on November 26th. I respectfully conclude that her evidence is not helpful to the jury or that she has some advantage over them.
Conclusion
[18] Cst. Melo can testify about her personal observations of Mr. Browne on November 26, 2012, and her involvement in the seizure of the Petro Canada video. The Crown may also play the video for the jury. It is open to the Crown to argue that the person in the video is Steven Browne on the basis of evidence admissible at this trial, but Cst. Melo cannot make this inference.
[19] Specifically, Cst. Melo is not permitted to make comment on articles of clothing on the video. While the officer is permitted to provide some background about the video, such as the date, location, time, she is not permitted to narrate for the jury or to comment or provide an opinion about what is happening in the video.
[20] Defence counsel concede that video is admissible. The Crown may make arguments during closing submissions and it is the jury who will decide, by applying their common sense and experience in life, whether to draw those inferences. Despite the fact that Cst. Melo is a police officer who had a specific role to play in the investigation, I find that she is in no better position to determine what is shown on the video than the jury.
Coroza J.
DATE: February 2, 2017
CITATION: R. v. Browne, 2017 ONSC 5054
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 02 02
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Her Majesty the Queen v. Steven Browne, Amal Greensword and Adrian Williams
BEFORE: COROZA J.
COUNSEL: Alex Cornelius and Greg Hendry, for the Crown
Anthony Bryant and Anne Marie Morphew, for Mr. Browne; Nicole Rozier and Leah Gensey, for Mr. Greensword; and Maureen Addie and Jamie Kopman, Counsel for Mr. Williams
ENDORSEMENT
COROZA J.
DATE: February 2, 2017