Her Majesty The Queen - and - Shou Chen

COURT FILE NO.: CR-16-1-222 DATE: 20190404

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN - and - SHOU CHEN

Counsel: Monica Gharabaway and Karen Simone, for the Crown Gregory Leslie and Michelle Fernandes, for the accused

HEARD: April 1, 2019

K.L. Campbell J.:

Pre-Trial Ruling

The Admissibility of the Recognition/Identification Evidence

A. Overview

[1] The accused, Shou Chen, currently faces an indictment that charges him with the second degree murder of Xian Xu Liu. The offence is alleged to have been committed on or about October 15, 2014, in the general vicinity of the Wallace Emerson Community Centre, near the intersection of Dufferin Street and Lappin Avenue, in the city of Toronto. Essentially, the Crown alleges that the accused and the victim, who were previously known to each other, coincidentally met up in this area. Ms. Liu was out for her daily walk, and the accused was riding his bicycle. The Crown contends that, for some reason, during the course of their ensuing conversation, the accused beat Ms. Liu to death with a metal bar.

[2] A security/surveillance video camera at the Wallace Emerson Community Centre recorded a man riding a bicycle in the area just before the deceased was killed. The Crown contends that this man is the accused. The Crown proposes to call a witness, namely, Mr. Wan Peng Mei, who is the deceased woman’s 49-year-old son, and someone well-acquainted with the accused, to explain his recognition of the accused as the man captured in the video recording riding the bicycle at the Community Centre.

[3] Defence counsel objects to the admissibility of this evidence, arguing that it does not meet the governing legal test of admissibility for such recognition/identification evidence. More particularly, while conceding that Mr. Mei is sufficiently acquainted with the accused to be able to provide this evidence, defence counsel argues that, given the poor quality of the images, Mr. Mei is in no better position than the members of the jury to potentially identify the person captured in the video recording.

[4] The pre-trial application to determine the admissibility of this evidence was based upon the voir dire evidence of Mr. Mei and selected still images taken from the security/surveillance video recording. After considering this evidence and hearing the submissions of the counsel on this issue, I advised the parties that I had concluded that the tendered recognition/identification evidence of Mr. Mei was admissible and could be introduced before the jury. I also indicated that I would subsequently provide reasons explaining this conclusion. These are those reasons.

B. The Governing Legal Standard

[5] There was no dispute between the parties as to the nature of the legal test that governs the admissibility of this evidence. Nevertheless, it is analytically helpful to begin with an articulation of that standard of admissibility. In earlier rulings, I have outlined my understanding of the established legal standard that governs the admissibility of this type of recognition evidence. See, for example, R. v. Farah and Khattak, 2016 ONSC 2081, at paras. 6-9; R. v. McKenzie, 2018 ONSC 2763, at paras. 8-11. That applicable legal standard is, essentially, as follows.

[6] The law is settled that a non-expert witness may provide opinion recognition evidence that the image of a person displayed in a 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. This has been described as the “prior acquaintance/better position” test of admissibility. See R. v. Leaney, [1989] 2 S.C.R. 393, at p. 413; R. v. Brown (2006), 215 C.C.C. (3d) 330 (Ont.C.A.), at para. 39; R. v. Berhe, 2012 ONCA 716, at paras. 13-23; R. v. Dirie, 2013 ONCA 261; R. v. Farhan, 2013 ONSC 7094, at paras. 33-36; R. v. Brown, 2013 ONSC 6466, at paras. 11-13; R. v. Sheikh-Hussein, 2015 ONSC 2888, at paras. 57-58; R. v. Barreira, 2017 ONSC 1078, at paras. 39-48; R. v. M.B., 2017 ONCA 653, at paras. 33-37, 46-47; R. v. Harty, 2019 ONSC 404, at paras. 14-17.

[7] In order to meet this threshold standard of admissibility, the witness need not be so familiar with the unique features of the individual recognized so as to permit the witness to describe with particularity the individual’s idiosyncrasies in physical appearance or movement as may be reflected in the photographs or portrayed on the video recording. While such familiarity would certainly strengthen the probative value of the recognition evidence, such matters should be left to the trier of fact to consider in assessing the ultimate weight of the evidence. See R. v. Berhe, at paras. 16-22; R. v. Panghali, 2010 BCSC 1710, at para. 42, affirmed, 2012 BCCA 407, at paras. 70-80; R. v. Benson, 2015 ONCA 827, at para. 26; R. v. M.B., at paras. 36-37, 46-47; R. v. Shengelia, 2018 ONSC 3030, at paras. 7-11; R. v. Field, 2018 BCCA 253, at paras. 23 (iii), 26-38, leave refused, 2019 CarswellBC 28.

[8] As Blair J.A. noted, in delivering the judgment of the Court of Appeal for Ontario in R. v. Berhe, at para. 20, the accepted “prior acquaintance/better position” standard has the “advantage of flexibility while at the same time providing sufficient criteria … to enable the court to perform its gate-keeping function for purposes of determining threshold admissibility.” As Blair J.A. stated, at para. 21:

The “prior acquaintance” branch of the Leaney / Brown test enables the trial judge, on a voir dire, to sort out whether the potential witness is sufficiently familiar with the person sought to be identified to have “some basis” for the opinion – or, “an articulated basis,” as some have said – and the “better position” branch ensures that the evidence will only be admitted if it is helpful to the trier of fact because the potential witness has some advantage that can shed light on the evidence in question.

[9] This is the legal standard that must be applied to the tendered evidence of Mr. Wan Peng Mei in relation to his purported recognition of the accused from the images of the video recording from the Wallace Emerson Community Centre.

C. Analysis

1. Introduction

[10] In my view, as I have already advised the parties, based on the voir dire evidence provided on this pre-trial application, the Crown should be permitted to call Mr. Mei to provide the jury with his opinion that the man riding the bicycle in the video recordings from the Wallace Emerson Community Centre is the accused. The evidence demonstrates that Mr. Mei has a significant “prior acquaintance” with the accused and is in a much “better position” than the jury to identify the accused as the person in the video recording. In short, the tendered evidence of Mr. Mei meets the governing legal threshold standard. See R. v. Berhe, at paras. 13-23; R. v. Gouveia, 2013 ONSC 4200, at paras. 52-86; R. v. Farah and Khattak, 2016 ONSC 2081, at paras. 16, 27, 39, 47, 53.

2. The Voir Dire Testimony of Mr. Mei

[11] According to the voir dire testimony of Mr. Mei, in the fall of 2014, he was living in a residence on Lappin Avenue in Toronto with the rest of his family, including his wife and their two children, and his own two parents. They had lived there together since 2004. Mr. Mei was working at Wings Food Company, in food production, where he had been employed since 1998.

[12] Mr. Mei testified that he had worked at Wings Food Company, together with the accused, who was another Wings Food Company employee, in the food production department, for a period of approximately eight to ten years. Mr. Mei testified that he saw the accused at work every work day, and that sometimes they had conversations (when they were not working). Their normal shift was Monday through Friday each work week. The food production area of the company was very large and typically had 30-40 employees working in the area each shift. Employees worked at different locations throughout this area, but on occasion, when directed by their supervisor, Mr. Mei and the accused worked side-by-side (some eight to ten feet away from each other).

[13] Mr. Mei testified that the accused lived in the same Toronto neighbourhood as he and his family, just two or three traffic lights away, and sometimes Mr. Mei drove the accused home from work. This happened “every once in a while.” Mr. Mei’s father also worked for the Wings Food Company, and he would also ride home with them. As Mr. Mei’s father and the accused were approximately the same age, they would often talk together on the way home after work. Mr. Mei was also able to speak to the accused as they all spoke the same Cantonese dialect, as they all came from the same village in China.

[14] Mr. Mei agreed that the accused, and his own father, retired from the Wings Food Company when they reached 65 years of age, which Mr. Mei estimated took place in approximately 2010. Of course, after that time, Mr. Mei did not see the accused as frequently as they no longer worked together. Indeed, thereafter, Mr. Mei admitted that he only saw the accused infrequently.

[15] Mr. Mei testified that he saw the accused occasionally outside of work, riding his bicycle, and passing him on the street. Mr. Mei also explained that the accused had been to their home on Lappin Avenue once or twice. Mr. Mei considered the accused to be a “family friend.” Mr. Mei agreed, however, that he had never been inside the accused’s residence. Mr. Mei testified that he occasionally saw the accused have a conversation with his mother, the deceased.

[16] Mr. Mei agreed that he had no difficulty recognizing the accused in the courtroom. Moreover, when Mr. Mei was shown the colour images from the security/surveillance video camera at the Wallace Emerson Community Centre, he immediately identified the accused as the man riding his bicycle in the images. Mr. Mei evidenced no indecision or hesitation in making this firm and positive identification of the accused. While Mr. Mei agreed that he could not determine the colour of the bicycle in the images, he maintained that he could see the appearance of the accused “very clearly” and without difficulty, including his various facial features (i.e. his eyes, nose and mouth), his hair and his physical build. Mr. Mei denied that the images were grainy and blurry.

[17] Mr. Mei also explained that he was first shown these same images from the video recording, by the police, within a few days of the death of his mother and, at that time, he similarly recognized the accused “right away” as the man riding the bicycle in the images.

3. The “Prior Acquaintance” Aspect of the Test

[18] Under the “prior acquaintance” branch of test, based on this voir dire evidence, Mr. Mei is clearly sufficiently familiar with the accused to have “some basis,” or an “articulated basis,” to provide the jury with his recognition testimony. Defence counsel did not suggest otherwise. Indeed, defence counsel conceded that the testimony of Mr. Mei met this aspect of the governing standard. I have no difficulty accepting that concession as being entirely appropriate in the circumstances of this case. I would have concluded, in any event, that the evidence met the “prior acquaintance” aspect of the governing legal standard.

4. The “Better Position” Aspect of the Test

[19] Under the “better position” branch of the test, based on this voir dire evidence, the recognition testimony of Mr. Mei will undoubtedly be helpful to the jury because Mr. Mei has a number of advantages not possessed by the jury, which can shed light on the true identity of the man riding the bicycle in the images from the video recording.

[20] Mr. Mei is much more familiar with the accused and his physical appearance. As I have indicated, over a lengthy period of time – some eight to ten years – Mr. Mei worked with the accused at the Wings Food Company in the same unit on the same shift. Sometimes they had conversations. On occasion, they worked side-by-side in the production area. Further, Mr. Mei occasionally drove the accused home from work in his car. During these trips, Mr. Mei would have been in close physical proximity to the accused. Sometimes they had conversations during these trips home. Even after the accused retired, sometime around 2010, Mr. Mei still saw the accused in their neighbourhood, riding his bicycle. On occasion, the accused visited the home of Mr. Mei to speak to one or both of his parents. Accordingly, Mr. Mei was well-familiar with the accused, who he regarded as a “family friend.” Mr. Mei would have known well the physical appearance of the accused, as he appeared riding a bicycle, in the fall of 2014.

[21] In contrast, the members of the jury, who are wholly unfamiliar with the accused, can only look at the accused now, from their vantage points in the jury box, as the accused sits in the prisoner’s box, and compare his current physical appearance (in April of 2019), from basically the waist up, to the images of the man riding the bicycle (in October of 2014) from the Wallace Emerson Community Centre video recording.

[22] While Mr. Mei denied that the still images taken from the video recording are “grainy and blurry,” the images are obviously somewhat less than perfectly clear. In my view, the nature of the quality of the still images are such that Mr. Mei also has an advantage over the members of the jury in identifying the accused as the man riding the bicycle in the images. His significant familiarity with the physical appearance of the accused places him at an advantage over the members of the jury in this regard.

[23] In these circumstances, I am satisfied that Mr. Mei is in a much “better position” than the jury to potentially identify the accused as the man riding the bicycle in the images from the video recording, and that his evidence in this regard will be helpful to the jury, because Mr. Mei has many advantages over the jury, that can shed light on the identification of the man riding the bicycle in the video recordings.

[24] As I have indicated, according to the governing jurisprudence, Mr. Mei need not be so familiar with the unique features of the accused so as to permit him to describe with particularity the idiosyncrasies in the accused’s physical appearance or his physical movements, as they might be reflected in the images from the video recording.

5. Probative Value Exceeds Potential Prejudice

[25] Finally, in my view the probative value of the tendered testimony of Mr. Mei greatly exceeds any potential prejudice to the accused. There is simply no basis to exclude this testimony on the discretionary basis that its potential prejudice outweighs its probative value. Defence counsel did not suggest otherwise.

[26] On its face, the tendered recognition/identification evidence of Mr. Mei has very considerable probative value on one of the contentious issues in this case – the identity of the person who killed the deceased. The legal requirements that Mr. Mei have a “prior acquaintance” with the individual being recognized and be in a “better position” than the jury to identify the individual in question ensures that the evidence has at least its own limited inherent degree of probative value. Mr. Mei clearly possesses, as defence counsel has appropriately conceded, sufficiently familiarity with the accused to justify the admission of the evidence, and Mr. Mei is in a much better position than the jury to be able to recognize the man riding the bicycle in the images, so as to be helpful to the jury in relation to this evidence. If the jury accepts his evidence as truthful, the jury could properly find that his evidence is accurate and reliable and possessed of very considerable probative force on the question of the identity of the man riding the bicycle in the video recordings.

[27] There is no doubt that this type of recognition/identification evidence, even when given by an honest and sincere witness, can be unreliable and inaccurate. Further, such evidence is difficult to accurately assess as it is often provided by honest, credible witnesses, and triers of fact may place undue reliance upon such evidence. As a result of the inherent frailties of such evidence, it is an acknowledged source of wrongful convictions. See R. v. Olliffe, 2015 ONCA 242, at paras. 36-40; R. v. Benson, 2015 ONCA 827, at paras. 25-26; R. v. Goran, 2008 ONCA 195, at paras. 19-20; R. v. Miaponoose (1996), 110 C.C.C. (3d) 445 (Ont.C.A.), at pp. 450-451; R. v. A.(F.) (2004), 183 C.C.C. (3d) 518 (Ont.C.A.), at para. 39; R. v. Campbell, 2017 ONCA 65, at para. 10; R. v. M.B., at paras. 29-37; R. v. Downey, 2018 NSCA 33, at paras. 51-59. Accordingly, it must be acknowledged that the recognition/identification evidence of Mr. Mei may be unreliable and inaccurate. However, the jury can be fully and accurately instructed about the potential dangers of identification evidence and appropriately warned as to its potential unreliability, so that they will be able to approach their consideration of this evidence with the appropriate degree of care and caution, fully appreciating the risks concerning the potential unreliability of this evidence. See Mr. Justice David Watt, Manual of Criminal Jury Instructions (2015, 2nd ed.), at pp. 391-398.

[28] In summary, after assessing the nature and quality of the anticipated testimony of Mr. Mei, and weighing it against any potential prejudice its admission might cause to the accused, I have concluded that the probative value of this evidence significantly exceeds any potential prejudice to the accused.

D. Conclusion

[29] Accordingly, as the parties have already been advised, the recognition/identification evidence of Mr. Mei is admissible at the trial of this matter.

Kenneth L. Campbell J.

Released: April 4, 2019

COURT FILE NO.: CR-16-1-222 DATE: 20190404

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN - and - SHOU CHEN

PRE-TRIAL RULING The Admissibility of the Recognition/Identification Evidence K.L. Campbell J.

Released: April 4, 2019