Court File and Parties

COURT FILE NO.: CR-17-0000422 DATE: 2018 11 15

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN A. Esson and S. Ferrone, for the Crown Applicant

- and -

HASSAN SALIFU J. Kaldas and R. Wong, for the Respondent Respondent

RULING RE: ADMISSIBILIY OF PHOTOGRAPHS

D.E. HARRIS J.

[1] This is my after-the-fact ruling explaining decisions I made with respect to the admissibility of photographs tendered by the Crown in their case. The accused Hassan Salifu was charged with second degree murder of his mother, Galina Alexander. There is no dispute that the accused killed his mother on August 15, 2015 in an apartment she rented at 33 Kennedy Road South in Brampton. The sole issue at trial was whether the accused is guilty of murder or manslaughter. [1] The jury had to decide if the Crown had proven that the accused intended to kill his mother or intended to cause her bodily harm which he knew was likely to cause death. If so, he was guilty of murder. If not, he was guilty of the lesser and included offence of manslaughter.

[2] There are 3 issues dealt with in this ruling:

1. Should any of the photographs from the scene or the autopsy be admitted into evidence? Counsel for Mr. Salifu resisted any of the photographs being seen by the jury;
2. Should a headshot photo from the deceased’s driver’s licence taken about four years before she was killed be admitted into evidence? and
3. The Crown also applies to admit into evidence a picture of the deceased’s face taken at the scene soon after she was killed. These two latter issues are connected.

THE DEFENCE ARGUMENT THAT NO PHOTOGRAPHS SHOULD BE ENTERED INTO EVIDENCE BEFORE THE JURY

[3] The defence position is that because the only issue is the mental element for murder and because the photos do not bear directly on this issue, they possess no probative value and are inadmissible. This mimics the defence position taken on the Crown’s application to admit discreditable evidence. I rejected this blanket defence position in that ruling and I reject it here now.

[4] The pictures are of the scene and of the autopsy. From the scene, there are pictures of the body as it was found. The deceased is lying on her back on the living room floor with a blood-soaked towel over her face. The accused said in his statement that after he had killed her, he turned her on to her stomach so he would not have to look at her face. However, because he felt it was not right for her to be facing down, he turned her to be face up. Then he placed a towel over her face because he did not want to look at it. There is considerable blood on her left shoulder as well as on the towel and blood on the floor and soaked into the carpet. There are also pictures of the body taken from closer-up. The Crown in order to mute the prejudicial effect on the jury helpfully edited some of the pictures, culling some and cropping others.

[5] The need for a trial judge to balance probative value against prejudicial effect goes back at least to the civil case of Draper v. Jacklyn, [1970] S.C.R. 92, 9 D.L.R. (3d) 264. In that case, the court held that photographs tendered before the jury at trial were inflammatory and required a new trial.

[6] The photographs if relevant, are presumptively admissible. It is difficult if not impossible to look at the photos -- for example the one of the body lying on the floor with the towel over the face -- and say that they tend to show that the accused intended to kill her. I agree with the defence to this extent. But to require this is to expect too much. This narrow framing of the issue sidesteps various other manifestations of probative value. A photograph can illuminate secondary sub-issues and need not be focused on the ultimate issue. It can also be admitted anticipatory of defences or explanations which are likely to be raised.

[7] There is often a palpable benefit to the jury in seeing the scene of the crime as depicted in a photograph. It is impossible to describe things comprehensively with words. The adage that a picture tells a thousand words does not go far enough. The limits of human imagination prevent an accurate and full description of the scene given by an observer. Equally, it is obvious that the representation created in the listener’s mind by a verbal description cannot possibly reproduce the actual scene. Imagining cannot substitute for seeing.

[8] A jury hearing descriptions of the scene may be troubled by a faint sense of disbelief. To see the crime scene brings home the reality and the details of the crime. There were several more specific reasons why the pictures of the scene were important in this case. Officer Hoftsetter, qualified without objection as an expert in blood spatter, required the pictures in order to base his opinion with respect to the movement of the body after-the-fact. The photographs permitted the officer to show the absence of spatter or pattern stains. The accused said in his statement that after he killed his mother, he paced for a while, turned her onto her stomach and then turned her over onto her back and put the towel on her face. The photographs of the body show this final position in the configuration and set up of the apartment. The photographs allow some insight into the accused’s after-the-fact state of mind.

[9] The autopsy pictures show the injuries to the deceased’s body. The utility of these are obvious. Needless to say, the diagrams of the injuries drawn by the pathologist do not describe the injuries nearly as effectively as do the photographs. In a case in which the degree and location of force is a vital issue, we should be hesitant to relegate the Crown to an inferior method of proof.

[10] The prejudicial effect of the photos of the body and of the blood is not inconsiderable. Seeing the deceased’s lifeless body lying in the ordinary looking apartment with the blood-soaked towel covering her face is haunting. I believe, however, that the jury can contain and manage the effect of these pictures. Although disturbing, they are not gory, they are not unduly grisly. The probative value of the photographs exceeds their prejudicial effect.

[11] The probative value of the autopsy pictures is substantial given the importance of the extent and placement of force to the juries’ task. The prejudicial effect of pictures of a dead body is not minimal but nor is it of great weight. I ruled these pictures, following the culling and cropping by the Crown, admissible in this trial.

THE TWO PHOTOGRAPHS TENDERED BY THE CROWN

[12] The issues with respect to the two photographs tendered by the Crown must be dealt with together. The Ministry of Transportation photograph was put forward as a “before” depiction of the deceased. It shows an attractive woman of 40 years old in a relatively ordinary driver’s licence photograph.

[13] The “after” photograph is of the deceased immediately following the assault by the accused. It is quite impossible to identity the person in the “before” and “after” photographs as the same person. The forensic purpose of the “before” photograph was to set it side by side with the “after” photograph, illustrating the horrendous consequences of the catastrophic assault to her face.

[14] In the very disturbing “after” photograph, the deceased’s face appears flattened and swollen. Her cheeks and eyes, indeed the whole face, all appear badly swollen. The swelling has homogenized the features of the face.

[15] The blood on the face and the other aspects of the picture imply that the force used was very substantial. Blood is speckled all over the face. There are many petechiae hemorrhages. The deceased’s distended tongue protrudes from her mouth slightly. Bruising is visible on her neck, under the chin. A substantial pool of blood has congealed under her nose and a river of blood flows down across the left side of her face onto her cheeks and chin. Ms. Alexander’s eyes are swollen shut. They appear badly bruised.

[16] Looking first at the admissibility of the “before” photograph, its only purpose is to illustrate the damage that was done by the accused to the deceased’s face as shown in the “after” photograph. The Crown did not argue there was probative value independent of what was generated by the comparison between the two.

[17] In the “before” photograph, there are difficulties of comparison which diminish the probative value. Chief amongst them are the age of the photograph. Four years of ageing can change a person’s face a great deal. Also, the context of the two photos, including their quality, lighting and vantage point, is completely different. In the “after” depiction, the deceased is photographed lying on her back on the apartment floor while the MTO picture is a typical driver’s licence head shot. There is no recognition or commonality between the two pictures; the faces appear to be of two different people. The probative value of the “before” picture is diminished by these differences.

[18] But the prejudicial effect is the real problem with admissibility. To see the deceased in life side by side with her in death is very troubling. This juxtaposition would likely awaken a strong natural protective instinct in a jury member. Of course, this instinct is not based in logic. The deceased is dead. But the urge to protect Ms. Alexander does not follow logic or rational rules. It rests on a purely emotional level.

[19] A related prejudicial effect arises from the reflection that the vibrant woman in the “before” picture was subjected by the accused to a vicious and tumultuous force, resulting in the “after” picture. This could produce outrage and a wave of emotion against the accused.

[20] The “before” photograph viewed together with the “after” photograph produces an inflammatory effect. This effect outweighs the legitimate value-added to the trial. The “before” photograph is inadmissible.

[21] Analyzing the “after” photograph, I recognize that the key point from the Crown’s point of view is to demonstrate the accused’s use of force, both the degree of force and how it was applied. From a conclusion of the force used, an inference can be drawn that the accused intended the consequence of death and is guilty of murder: R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438, at paras. 55-68. This line of reasoning is the most important facet of the Crown’s case for murder.

[22] The problem however is that the photograph does not convey a substantial amount of information. The face of the deceased as it appears in the photograph is swollen, bleeding and flattened to some degree. The deceased has been badly beaten, there is no doubt of that, but precisely to what extent is hard to say.

[23] The real source of information the jury will use to infer force comes from the pathologist’s evidence. She testified that a CT scan revealed numerous nasal bone, cheek and eye socket fractures in the face. The force required to break the bones around the eyes and nose would have been considerable. The pathologist said she palpitated the flesh on the face and found that there was very little bone structure remaining. It was soft while these bones are usually hard. The bones were no longer distinct.

[24] Officer Hofstetter, the identification officer, testified that he tried to check the eyes for hemorrhaging and separate the closed eyelids but the deceased’s face was too swollen. The face shifted and blood started coming out of the nose.

[25] There were the two pictures admitted of the mouth showing bruises to the gums and the tongue admitted into evidence. There were numerous bruises and lacerations in the mouth and on the tongue. The tongue was bruised from an impact. It was more likely the mouth was open when this occurred. That the tongue was protruding out of the mouth could have been from clenching the teeth, being face down or from neck compression.

[26] A photograph of the neck showed the ligature type marks and two bruises. The pathologist testified that the two bruises may have been made with fingers. This photograph was admitted into evidence.

[27] The “after” photograph must be viewed in context of the total evidentiary record, including the other photographs presented, the pathologist’s evidence and the evidence of the identification officer. Viewed in this context, the photograph of the deceased face adds very little. Probative value is not primarily conveyed by the surface injuries but rather by the devastation under the surface as attested to by the pathologist.

[28] The prejudicial effect of the photograph is high. The blood, the swelling and the flattening effect combine to make this a particularly harrowing photograph.

[29] Defence counsel argued that the emotional nature of this case could compound the prejudicial effect. I think that is right. The emotional tenor of this trial was very high. The accused, 23 years old at the time, killed his mother, 44 years old. Despite problems in the relationship and some previous anger directed towards his mother, there was evidence that the two loved each other and saw themselves as a team. The profound anguish of the accused in the 911 call and in his lengthy statement to the police is difficult to watch and listen to. The killing was terrifically violent. While some jury members may feel sympathy for the accused for various reasons, a surge of anger and hatred is more likely. Once stirred up, this could jeopardize the accused’s fair trial rights.

[30] I have looked at several of the cases in the area: see R. v. Wills, [2007] O.J. No. 52, at paras. 19-20, 22 (S.C.), R. v. Martineau, [2015] O.J. No. 7774, 2015 ONSC 2701, at para. 9, R. v. P.(R.) (1990), 58 C.C.C. (3d) 334 (Ont. S.C.), at 347, R. v. Kinkead, [1999] O.J. No. 1498 (S.C.).

[31] In summary, I would rank probative value of the “after” photograph on the low side of the scale. The information conveyed to the jury on the issue of the force used is not high. The true source of information on this subject is the pathologist’s evidence. Second, I would place prejudice in the middle of the range. I accept that modern day jurors have generally seen graphic images in the media and on television. However, I believe that the horrific nature of this photograph is well above what most lay people have been exposed to. Add to that the high emotions of the trial and I believe placing prejudice in the middle of the scale is, if anything, charitable to the prosecution.

[32] Balancing the two together in the full context of the other evidence in the case, the prejudicial effect of the “after” photograph, exceeds its probative weight. For these reasons, I ruled it inadmissible.

D.E. HARRIS J. Released: November 15, 2018

Footnote

[1] There was some suggestion at the outset that there might be a not criminally responsible aspect to the trial. In fact, defence counsel announced near the end of the Crown’s case that he was opting to have a two-stage trial with the first stage issue being murder or manslaughter and the second, not criminally responsible. However, my bottom line rulings on the photographs was made in the first stage of the trial and without any consideration of the issues on the second stage.