Court File and Parties
COURT FILE NO.: CR-18-50000385-0000 DATE: 20190613 ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N : HER MAJESTY THE QUEEN – and – ABDIRIZAQ YABAROW
Counsel: Paul Zambonini and Gus Kim, for the Crown Jennifer Penman and Tania Bariteau, for Abdirizaq Yabarow
HEARD: May 30, 2019
By virtue of s. 648(1) and s. 645(5) of the Criminal Code of Canada, this ruling may not be published, broadcast or transmitted in any way until the jury that hears this trial retires to consider its verdict.
M. Dambrot J. :
[1] Abdirizaq Yabarow is charged with the second degree murder of Abdinasir Hussein. He is being tried by me, with a jury. The Crown will adduce evidence that on October 3, 2017, a number of men, including the accused, were drinking in Mr. Hussein’s apartment. Following a fight involving the accused and another of the men present, everyone except the accused and the deceased left the apartment. The following morning, the deceased’s body was discovered in the apartment. The scene was very bloody, and the deceased had extensive linear and irregular haphazard sharp force injuries to his scalp, face, neck, shoulders, arms, upper back and chest. The Crown alleges that during the period of time that the accused was alone with the deceased, he murdered him.
[2] As part of its case, the Crown intends to introduce a series of photographs of the scene of the killing and of the body of the deceased taken at the autopsy. Commendably, the parties have been able to agree on which of the photographs the Crown will and will not introduce, and which of the photographs will be cropped or altered to minimize any possible prejudicial effect, with three exceptions. Despite their best efforts, three autopsy photographs remain in contention. These photographs depict a right side view, a left side view and a front view of the deceased’s head. They graphically depict, in colour, the many injuries he suffered. The Crown brings this application for an order permitting these three photographs to be introduced in evidence.
The Principles
[3] I have described what I understand to be the principles governing the admissibility of graphic depictions of the deceased in a homicide case in several cases, most recently in R. v. Triolo, 2017 ONSC 598. I will summarize them again briefly.
[4] First, the trial judge must determine the probative value of the evidence by assessing its tendency to prove a fact in issue in the case, including the credibility of witnesses. It is self-evident that photographs can more fully, clearly and accurately portray or describe persons, places or things than can a witness by oral evidence. Photographs are not subject to the difficulty inherent in oral evidence of relating detail. The jury can conveniently refer to them and their details during the trial and in their deliberations. Courts routinely admit photographs to help the trier of fact understand the testimony of witnesses. As a result, if the condition of the body of the deceased and the findings drawn from it by a forensic pathologist are relevant in a homicide trial, as they usually are, then photographs of the body at the autopsy have some probative value.
[5] In addition, such photographs are often admitted for the following purposes:
- to illustrate the facts on which experts base their opinion and to illustrate the steps by which they arrive at their opinions;
- to illustrate minutiae of objects described in the testimony of a witness, e.g., to show the nature and the extent of the wounds;
- to corroborate testimony and provide a picture of the evidence and to assist the jury in determining its accuracy and weight;
- to link the injuries of the deceased to the murder weapon;
- to provide assistance as to the issues of intent and whether the murder was planned and deliberate; and
- to help the jury determine the truth of the theories put forth by the Crown or defence, for example: as to which accused committed the crime and as to whether the crime was committed in self-defence.
[6] Second, the trial judge must determine the prejudicial effect of the evidence. The judge should consider both moral prejudice and reasoning prejudice. When the admissibility of autopsy photographs is challenged, the focus most commonly is on an aspect of reasoning prejudice: the concern that photographic depictions of a deceased may inflame the minds of members of jury as a result of the horrific nature of the crime, and arouse in the jurors hatred for the accused or sympathy for the family of the victim. This in turn may make them more willing to convict the accused than they would be if they viewed the evidence dispassionately.
[7] Third, the judge must balance the probative value against the prejudicial effect having regard to the importance of the issues for which the evidence is legitimately offered against the risk that the jury will use it for other improper purposes, taking into account the effectiveness of any limiting instructions. In carrying out this function, the judge must identify the issue in question, assess the relative importance of that issue and assess the degree of relevance of the evidence to the issue identified and its cogency in establishing the inference sought to be drawn. It must be borne in mind that once the probative value of the evidence is established by the Crown, the onus is on the accused to demonstrate that the balance favours exclusion of otherwise admissible evidence.
[8] Finally, even where the trial judge concludes that the prejudicial effect of photographs has not been shown to outweigh their probative value, the judge retains discretion to minimize whatever small risk of prejudice there may be by giving appropriate direction regarding their presentation.
Probative Value
[9] I turn then to the question of probative value. I have no doubt that in this case, the photographs will tend to corroborate testimony, provide a picture of the evidence and assist the jury in determining its accuracy and weight; provide assistance to the jury as to the issue of intent; help the jury to determine the truth of the theories put forward by the Crown and defence; assist the pathologist and other witnesses in giving their evidence; assist the jury to understand components of the evidence of the pathologist; illustrate the facts on which the expert bases his opinions and illustrate the steps by which he arrived at his opinions; and show the nature and extent of the wounds. In the end, the photographs may assist the jury in determining whether or not the accused stabbed the deceased, whether or not he caused the death of the deceased, and whether or not he had the intent necessary for murder.
[10] More specifically, in this case, the photographs may be of significant assistance to the jury in evaluating possible defences. The accused, as is his right, has not announced his defence. However in his statement to the police, he suggested that he was acting in self-defence. And at the preliminary inquiry, the defence apparently advanced an unknown third party suspect theory. Such a theory would permit an argument that even if some of the deceased’s wounds were inflicted by the accused, others inflicted by the unknown third party caused his death. This position is supported by the evidence of one neighbor of the deceased that he heard noises from the deceased’s apartment around 3:00 a.m., and another who said that he heard noises between 2:00 and 3:00 a.m., at a time when the accused would likely still have been at the hospital having his own wounds tended to. It would also be open to the accused to advance intoxication to suggest an absence of intent.
[11] The photographs may be useful to the jury in assessing each of these three defences. With respect to self-defence, the disparity of the wounds suffered by the accused and the deceased, best understood with the assistance of photographs, may be important to the jury. With respect to a third party suspect theory, the pathologist testified at the preliminary inquiry that it is difficult to describe the wounds suffered by the deceased. He did say that there were a great many sharp force injuries - literally hundreds of separate incisions, and that he is unable to say what weapon was used to inflict them. But he went on to say that the wounds appear to all have been brought about by the same instrument. As a result, the number and similar nature of all of these wounds, again best understood with the assistance of photographs, may militate against the theory that there were two separate stabbing events, and two stabbers. Finally, with respect to intoxication and intent, the photographs may assist the jury in assessing the mechanics of the killing and, accordingly, in assessing intent.
[12] For these reasons, I am of the view that the photographs are relevant to the issues in this case, and have significant probative value.
Prejudicial Effect
[13] I turn then to the question of prejudicial effect. Undoubtedly, the three photographs are distressing. However, as I have said before, I share the view expressed by LaForme J. in R. v. Kinkead, [1999] O.J. No. 1498, at paras. 17-18, that 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.
[14] I also share the following view expressed recently by K. Campbell J. in R. v. McKenzie, 2018 ONSC 3272, at para. 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 commonplace 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.
Balancing Probative Value Against Prejudicial Effect
[15] Next, I balance the probative value of the three photographs against their prejudicial effect having regard to the importance of the issues for which the evidence is legitimately offered against the risk that the jury will use it for other improper purposes, taking into account the effectiveness of any limiting instructions. In my view, the photographs are highly relevant to the central issues in this case, and will be of considerable value in establishing the inferences sought to be drawn from them, while the risk that they will be used for an improper purpose is low. The probative value of the evidence strongly outweighs its prejudicial effect.
Discretion
[16] Finally, I consider whether or not in this case I should exercise my discretion to minimize whatever small risk of prejudice there may be if the three photographs are admitted in evidence by appropriate direction regarding their presentation. The accused argues that I should exercise my discretion in two ways. First I should permit the Crown to adduce only the two side view photographs of the deceased’s face, and not the front view photograph. Second, I should require the Crown to adduce these photographs in black and white, not in colour. I have made similar orders in other cases, but in this case I will not.
[17] In considering whether or not to exercise my discretion in this manner, I examined the three photographs closely, and also examined black and white versions of them that were prepared by Crown counsel. I found that eliminating any one of the photographs would eliminate the depiction of some of the wounds, which would, in turn, undermine the very purpose of adducing the photographs. I also found, in this case, that black and white versions of the photographs eliminate some of the wounds, and obscure others. Again, this would undermine the very purpose of adducing the photographs. As a result, I decline to accede to either of the suggestions made by the defence.
Disposition
[18] Accordingly, the application is granted. The Crown may introduce full colour versions of all three of the photographs in issue.
M. DAMBROT J.