COURT FILE NO.: CR-17-7-584
DATE: 20180524
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
HAVARD McKENZIE
Barb Glendinning and Elizabeth Jackson, for the Crown
Gary Grill and Elizabeth Bingham,
for the accused
HEARD: April 23-24, 2018
K.L. Campbell J.:
Pre-Trial Ruling
The Admissibility of the Edited Video Recording of the Murder
A. Introduction
[1] The purpose of this ruling is to address any remaining question regarding the admissibility of the edited video recording of the killing of the deceased, which has been played for the jury, and which has been made an exhibit in the trial proceedings in this case.
B. Overview
[2] The accused, Havard McKenzie, currently faces an indictment that charges him with the second-degree murder of Tariq Mohammed. The offence is alleged to have taken place in downtown Toronto, at the Garden Restaurant on Dundas Street West, in the early morning hours of November 16, 2014. Many of the important events in this case, including the actual murder of Mr. Mohammed, were recorded by a number of security/surveillance video cameras located throughout the restaurant.
[3] Essentially, the Crown alleges that the accused was one of a number of men who were involved in an armed robbery in the washroom area of the restaurant. The victim of the robbery was Dennis Green. He was wearing gold chains around his neck that night and, when he attended in the washroom area of the restaurant, the group of robbers, two of whom brandished semi-automatic handguns, wanted those gold chains. Mr. Mohammed was a friend of Mr. Green and was with him at the time of the robbery, and they both physically struggled with the robbers. When the gold chains finally broke during the struggle, Mr. Green and Mr. Mohammed were able to escape to the front of the restaurant. The robbery was recorded on a security/surveillance camera located near the washroom area of the restaurant.
[4] Within minutes of the robbery, while Mr. Green and Mr. Mohammed were both still at the front of the restaurant by the cash register, two of the men who had been engaged in the robbery repeatedly shot Mr. Mohammed, from very close range, with their semi-automatic handguns. The murder of Mr. Mohammed was video recorded, clearly and in colour, by the camera that was located above the cash register area at the front counter of the restaurant. It is the admissibility of this video recording that is addressed by this ruling.
[5] This video recording showed that the “first shooter” first discharged his firearm toward the front of the restaurant, in a north-easterly direction, while engaged in a struggle with Mr. Green. Then, as Mr. Mohammed was falling backwards to floor into the employee area behind the front counter, the “first shooter” discharged his handgun twice into upper body of Mr. Mohammed. Shortly thereafter, as Mr. Mohammed lay on the floor on his right side, in the fetal position, with each of his hands on each side of his head, the “first shooter” inserted his handgun between the protruding, adjacent elbows of the deceased, and discharged his handgun again, this time into the deceased’s face and head area. As these additional shots were being fired, the “second shooter” arrived into this same area, stood right next to the “first shooter,” and proceeded to immediately discharge his semi-automatic firearm into the prone body of Mr. Mohammed three times in rapid succession. The video recording also graphically revealed the wounds caused to the head of the deceased, and the pool of blood that quickly formed under his body.
[6] The Crown alleges that the accused, Havard McKenzie, is the “second shooter.”
C. The Pre-Trial Application – The Written Materials
1. The Pre-Trial Application – The Position of the Defence
[7] Defence counsel filed written materials on a pre-trial application which sought: (1) the complete exclusion of the video recording of the murder of the deceased; or, alternatively (2) the editing of the video recording of the murder to prevent the jury from seeing the wounds to the head of the deceased and the pool of blood that formed under his body.
[8] More particularly, in the written materials filed on this application, defence counsel argued that, as the defence was going to admit that the “second shooter” was guilty of second degree murder, contending only that the accused was not the “second shooter,” the details of the killing of the deceased had no probative value on the only issue of “identity,” as the overhead perspective of the front counter camera did not reveal the faces of the two killers. The “graphic images” of the killing, however, defence counsel argued, were greatly prejudicial to the accused as they would likely “inflame the passions of the jury,” rendering them “unable to abide by their oath or affirmation to judge the case objectively.”
[9] Alternatively, defence counsel argued that the video recording of the killing should be edited in two ways. First, the video should be edited to conceal from the jury the “profuse bleeding” of the deceased immediately following the shooting. Second, the deceased’s face should be obscured from the jury’s view. Defence counsel argued that those aspects of the video recording had no probative value, might needlessly traumatize the jurors, and make it more likely that the jury would convict the accused “simply to punish someone for Mr. Mohammed’s extremely violent death.” Defence counsel argued that the proposed edits to the video recording would “lessen the emotional impact” of the jury seeing the murder of the deceased “in real time.”
2. The Response – The Position of the Crown
[10] In its written response to this application, the Crown indicated that it had voluntarily edited the front-counter video recording, so as to draw it to an immediate conclusion once the shooting had stopped, and so as to block the portion of the recording that showed the growing pool of blood under the accused. The Crown maintained, however, that the video recording of the details of the killing of the deceased by the two shooters was admissible in evidence. According to the Crown, this video recording would provide relevant factual context to the jury and would give the jury “the best evidence of the offence.” The Crown also maintained that there was no reason to obscure the deceased’s face.
D. The Oral Hearing of the Application
[11] Initially, at the oral hearing of this pre-trial application, I understood defence counsel to pursue his request for the total exclusion of the ten-second long portion of the front-counter video recording of the killing of the deceased by the two shooters (i.e. from approximately 3:55:50 to approximately 3:56:00 on the digital timing marker). However, during the course of his oral argument, defence counsel clarified his position on the application. More particularly, I understood defence counsel to abandon that aspect of his application, pursuing only his request to have that portion of the video recording edited so that the jury would not see the blood from his head wound and the pool of blood that formed under the body of the deceased.
[12] More specifically, in clarifying his position on the application, defence counsel expressly indicated that he did not want to deprive the jury of the video recording showing the details of the killing. He stated: “The jury can still see the individuals come in and shoot” the deceased. Defence counsel only wanted the body of the deceased to be “blocked out.” More specifically, defence counsel indicated that the jury “will see the shooters,” and will see “the bullets leaving the gun” – they will “just not see Mr. Mohammed’s head.” As to the details of this proposal, defence counsel said that his suggestion was that “Mr. Mohammed’s head be grayed out” – that a “square” be placed there [on his head] – but “that’s it, the rest of his body will show,” and “the shooters will show.” Defence counsel expressly agreed that he was “not suggesting that the whole thing be edited out” to deprive the jury of seeing the details of the shooting itself, but just that a small block be placed over the deceased’s head, to spare the jury from seeing the deceased’s head being “blown up.” Defence counsel conceded that this was all he could “credibly argue” should be edited from the video recording of the killing based on the potential prejudice to the accused.
[13] When asked to respond, the Crown indicated that she too had originally thought that the purpose of the application was to prevent the jury from seeing the killing of the deceased. She explained that, after the pooling of the blood under the accused was voluntarily blocked, there was really nothing else that was potentially prejudicial to the accused. Further, the Crown indicated that she was not sure whether it was even technologically possible to have a square placed over the head area of the deceased in the video recording.
[14] The hearing of the application was, at that point, temporarily suspended in order to determine whether the defence request could be accommodated technologically, and to see how a further revised version of the video recording would appear with the editing proposed by defence counsel.
[15] Subsequently, and over time as they became available, the Crown produced a number of further edited versions of the video recording of the killing of the deceased. Each of these versions attempted to achieve the same goal – to conceal the pooling of blood from beneath the body of the deceased, and to conceal the gunshot wound to the deceased’s head and the associated bleeding from that wound. While this editing process was, I understand, a very labour-intensive and time-consuming one for the team of police technical experts that accomplished them, these increasingly improved versions of the video recording were produced in a very timely way. Ultimately, a version of the video recording was produced which entirely blocked the pooling of blood beneath the body of the deceased and placed a large black dot over the area of his head which concealed the gunshot wound to that location, and its associated bleeding. This was the version of the video recording which was ultimately seen by the jury and filed as an exhibit.
[16] As I understood counsel, by the time the jury was shown the final, best-edited version of the video recording of the killing of the deceased, the positions of the parties had evolved to the extent that, essentially, they were agreed that this edited version of the video recording was admissible in evidence and could be shown to the jury. The Crown seemed content with the editing of the tendered video recording evidence. Defence counsel also seemed content with this resolution of the application. However, at one point, near the conclusion of the pre-trial discussion of this application, defence counsel indicated that he would “rather have the whole head or even the whole body” of the deceased covered. Indeed, he indicated that if he was able to “have [his] way, none of the video would be shown” to the jury. However, he indicated that, “being realistic,” he only argued, alternatively, that the “head” of the deceased “should be covered.”
[17] In these circumstances, in my view it is only appropriate to resolve any potential outstanding controversy between the parties as to the admissibility of the video recording that was shown to the jury and filed as an exhibit in this case.
E. The Admissibility of the Edited Video Recording of the Murder
[18] In my view, there is no question that the Garden restaurant, front-counter video recording of the killing of the deceased, as it was edited and ultimately shown to the jury, is admissible as evidence in this case.
[19] The accused is charged with the second-degree murder of Tariq Mohammed. This edited video recording shows, with clarity and in colour images, and with near perfect accuracy, the circumstances of the killing of Tariq Mohammed. It is, without question, the best possible evidence as to precisely how Mr. Mohammed was killed. If a single picture is worth a thousand words, it is difficult to imagine how many pages of words it might conceivably take to fully and accurately describe the ten fluid seconds of video recording that historically preserved the details of the tragic killing of Mr. Mohammed.
[20] As his pre-trial application was originally understood, and seemingly again in his final submissions on the application, defence counsel appeared to suggest, however, that this ten-second portion of the video recording was effectively rendered redundant, and deprived of any potential probative value, by virtue of the nine-word defence admission that “the second shooter was guilty of second-degree murder.” Yet, in clarifying his position on this application, at one point defence counsel conceded that this was not an argument that could be “credibly” advanced. Even in his latter submissions, when he returned to the suggestion that the video recording of the killing should be excluded, he agreed that this was not a “realistic” argument. I agree with these candid concessions by Mr. Grill.
[21] In my view, the video recording of the murder maintains very considerable probative value, even in light of the defence admission, in providing the jury with all of the factual circumstances and nuanced details of the murder. By their viewing of but ten seconds of video recording evidence, the jury can instantly know precisely how the deceased was killed. To deprive the jury of all of those easily available, and unquestionably accurate, details of the murder, and leaving them instead with only the defence admission that “the second shooter was guilty of second-degree murder,” would be to deprive the jury of a clear, concise and accurate factual narrative of the killing, and would leave the jury with nothing but an abstract, generic, legal conclusion, devoid of any informative factual content or details. In short, in my opinion, the video recording of the alleged offence has very considerable and obvious probative value.
[22] In contrast, in my view the admission of the video recording poses little realistic potential prejudice to the accused. It is difficult to imagine how any 12 reasonable members of a jury could possibly find an accused guilty of murder simply because of the violent and senseless nature of the killing, when the key issue for them to determine is whether the Crown has established, with the requisite degree of certainty, that it was the accused who, in fact, was the person who did the killing. It would be entirely irrational for any jury to reach such a verdict – based only on the gravity and inherent violence of the crime. In my view, our collective experience with juries in Canada provides no support whatsoever for the suggestion that juries engage in such irrational and irresponsible conduct.
[23] In this regard, it is important to appreciate that modern, sophisticated juries are quite unlikely to quickly abandon their personal oaths or affirmations and reach an emotional verdict based only upon graphic and disturbing images of the crime or the deceased. Gruesome and grotesque images, whether displayed in still photographs or video recordings, are common place in daily news reports, on internet websites, on television and in the movies. Courts should not underestimate the abilities of modern juries to focus on the important issues in a case, without being emotionally distracted by graphic or disturbing images. See R. v. Kinkead, [1999] O.J. No. 1498 (S.C.J.), at para. 17; R. v. Baptiste, [2000] O.J. No. 1639 (S.C.J.), at para. 6; R. v. Currie (2000), 2000 22822 (ON SC), 31 C.R. (5th) 306 (Ont.S.C.J.), at paras. 5-10: R. v. Trakas, [2007] O.J. No. 3240 (S.C.J.), at paras. 6-9; R. v. S.(C.L.), 2009 MBQB 130, at paras. 17-21; R v. Sipes, 2011 BCSC 920, at paras. 20-23; R. v. Cargioli, 2015 ONSC 7336, at paras. 17-18; R. v. Granados-Arana, 2017 ONSC 2123, at para. 5; R. v. Browne, 2017 ONSC 5055, at para. 32. As Dambrot J. recently reiterated in R. v. Triolo, 2017 ONSC 598, at para. 14;
… juries today are not generally surprised, horrified or inflamed to the point of hatred by the scenes they expect to see from a horrific crime. Jurors are intelligent, well-meaning and conscientious citizens who take their oaths very seriously. Unless common sense or some other proof indicates the contrary, I believe that juries respect and abide by their sworn duties and comply with the instructions of the court.
[24] Further, as the authors S.C. Hill, D.M. Tanovich and L.P. Strezos indicate in their helpful text, McWilliams’ Canadian Criminal Evidence (2016, 5th ed.), vol. 2, § 23:20.40, at p. 23-14, “[i]t is relatively rare for graphic images to be excluded” from evidence and, subject to the principles of relevance and the probative value of the evidence exceeding its prejudicial impact, “the prosecution does not have to forego use of photographic evidence merely because the defence advances admissions relating to the subject-matter of the photos.” I would add that this same general rule that applies to photographs also applies with respect to video recording evidence.
[25] Nevertheless, out of an abundance of caution, and in an effort to minimize any possible prejudice that might conceivably flow to the accused as a result of the jury seeing the video recording of the murder of the deceased, the editing sought by defence counsel was successfully completed before the video recording was shown to the jury. Indeed, the video recording of the killing that was seen by the jury in this case effectively contained the precise editing that defence counsel had initially requested.
[26] Moreover, in an effort to ensure that the jury approached their consideration of the video recording evidence objectively, with reason and common sense, in the opening instructions to the jury they were told the following:
You must decide this case by a reasoned, objective assessment of the evidence, not by an emotional reaction to it. I will emphasize the importance of that duty in this case, as I understand that you will see evidence that is graphic and potentially disturbing. You must assess that evidence – just like all of the evidence in this case – objectively, with your reason and common sense, not by any potential emotional reaction to the evidence.
[27] Further, as requested by defence counsel, just before they saw the portion of the edited video recording that displayed the murder of the deceased, the jury was provided with a simple explanation for the editing of the video recording that would have been apparent to them. More specifically, the jury were told as follows:
You will notice that, in a part of the video recordings from the Garden Restaurant surveillance/security cameras that you will see shortly, there is a black dot over a portion of the head of the deceased, Tariq Mohammed, and a block over a portion of the floor area where he is situated. The dot and the block have been placed in their respective locations in order to be able to: (1) permit you to continue to see the relevant details of the killing itself; but (2) conceal from you the gunshot wound to the deceased’s head, and the coincident bleeding of the deceased from that wound. The recording of the killing is graphic enough without that needless gore.
F. Conclusion
[28] In summary, I am satisfied that the probative value of the edited video recording of the killing of the deceased substantially outweighs any potential prejudice to the accused. Further, in my view no further editing of the video recording is necessary or even appropriate.
[29] In the result, for these reasons, I concluded that the edited video recording of the killing of the deceased, was admissible in evidence in this case.
Kenneth L. Campbell J.
Released: May 24, 2018
COURT FILE NO.: CR-17-7-584
DATE: 20180524
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
HAVARD McKENZIE
PRE-TRIAL RULING
The Admissibility of the
Edited Video Recording of the Murder
K.L. Campbell J.
Released: May 24, 2018