Court File and Parties
CITATION: R. v. Asante, 2017 ONSC 6647
COURT FILE NO.: CR-16-50000081-0000
DATE: 20171106
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent
– and –
BENARD ASANTE AND FRANKLIN AFRIFA Applicants
Counsel:
Patrick Travers and Sarah Leece, for the Crown
Paul Burstein and Karen Symes, for the Applicant Asante and Tyler MacDonald and Karen Lau Po Hung, for the Applicant Afrifa
HEARD: June 1, 2 and 5, 2017
RULING ON THE LIMITS OF OPINION EVIDENCE RELATED TO VIDEO SURVEILLANCE OF VEHICULAR TRAFFIC
B. P. O’MARRA J.
[1] Benard Asante and Franklin Afrifa are jointly charged with first degree murder and attempt murder.
[2] In the early evening of August 18, 2014, the two victims were in a car that had stopped as it approached a red light at the intersection of Jane Street and Lawrence Avenue in Toronto. Another car pulled up towards the same intersection with two men inside. The passenger got out of the second car carrying a handgun and fired several shots at close range at the two men in the first car. The driver was killed and the passenger was rendered a quadriplegic by a shot to the neck and spinal area. The shooter re-entered the second car and it sped away from the scene.
[3] Benard Asante was the driver of the second car. The Crown alleged that the shooter was Franklin Afrifa and that Benard Asante was a party to both alleged offences.
[4] The position of the Crown is that the victims were targeted. In support of that the Crown tendered surveillance video of vehicular traffic on Lawrence Avenue leading up to the time of the shooting. There was no dispute at trial as to the make, model and colour of the suspect and victims’ vehicles.
[5] Detective Dave Dickinson of Toronto Police Service is the officer in charge of this case. In preparation for trial he has repeatedly reviewed the video surveillance of vehicular traffic on Lawrence Avenue in the time leading up to the shooting. He also viewed video footage of the suspect vehicle at nearby locations close in time to the critical events. His potential evidence included his opinion that at various locations on Lawrence Avenue he identified the suspect vehicle following the victims’ vehicle. Counsel for both accused submitted that there should be limits on the evidence of Detective Dickinson.
[6] This type of evidence was characterized in R. v. Walizadah, 2007 ONCA 528 at para. 54 as a combination of fact and opinion. The trial judge in that case ruled as follows:
It is my conclusion that the witness will be permitted to testify as to what he purportedly sees on the films. In other words, he will be permitted, for example, to say whether the particular vehicle in question appears to be round or square in shape, and whether the particular vehicle appears to be light or dark in colour. However, the witness will not be permitted to say that the van on the surveillance film appears to be similar to that driven by the accused . . .
That ruling and the following mid-trial instruction were approved on appeal:
Insofar as Detective Sergeant Sanson’s evidence is concerned, ultimately it will be for you to decide what is shown on the films. It is your duty and your responsibility to determine, if you can, the shape of the van on the surveillance film and whether it is light or dark in colour.
[7] In accord with Walizadah, I ruled that Detective Dickinson is not permitted to testify that any vehicles pointed out on the video footage are similar or consistent with the victims’ or the suspects’ vehicles. The Crown is entitled to play the videos in the course of Detective Dickinson’s testimony and have him place them in context related to time and location. The Crown is entitled to direct the officer’s attention by use of a cursor to certain specific times and vehicles. The ultimate findings of fact as to whether either or both of the victims’ or suspects’ vehicles appear at any specific time or location will be for the jury based on their consideration of all of the evidence. Counsel for both accused agreed with these limitations and the latitude to be afforded the Crown in leading this evidence. Counsel were also cautioned that they be careful in their cross-examination so as not to reopen the limits I have placed on Detective Dickinson’s testimony. The jury will also receive a mid-trial instruction related to this evidence that will in a general way alert them to the relevance of the evidence and that they must not come to any conclusion on these matters until they have heard and seen all of the evidence, the addresses of counsel and my final charge.
B. P. O’Marra J.
Released: November 6, 2017
CITATION: R. v. Asante, 2017 ONSC 6647
COURT FILE NO.: CR-16-50000081-0000
DATE: 20171106
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
BENARD ASANTE AND FRANKLIN AFRIFA
RULING ON THE LIMITS OF OPINION EVIDENCE RELATED TO VIDEO SURVEILLANCE OF VEHICULAR TRAFFIC
B. P. O’Marra J.
Released: November 6, 2017