Court File and Parties

Court File No.: 18-0552 Date: 2019 07 23 Ontario Superior Court of Justice

Between: Her Majesty The Queen – and – Raja Dosanjh, Accused

Counsel: E. Maguire and J. Forward, for the Crown J. Greenspan and B.J. Greenshields, for the Accused

Heard: July 16, 2019

Before: Lemon J.

Ruling Re: Photographic Evidence

Restriction on Publication A Non-Publication Order is made pursuant to ss. 645(5) and 648(1) of the Criminal Code of Canada that publication of this ruling is prohibited.

The Issue

[1] The defence objects to four photographs and one video of Mr. Dosanjh. After argument, I advised counsel that, for reasons to follow, one photograph is excluded and the balance is admissible. These are those reasons.

Exhibit ‘A’

[2] Mr. Dosanjh is charged with first degree murder. The murder occurred on March 1, 2016.

[3] In a ruling dated June 3, 2019, I allowed the Crown to tender an arrest photograph of Mr. Dosanjh, taken February 28, 2017. I ruled:

This photograph was taken February 28, 2017. The offence is alleged to have been committed March 1, 2016. Now, in May of 2019, Mr. Dosanjh looks significantly different. He is thinner and wears glasses.

The defence submits that this photograph will not assist with the identification of Mr. Dosanjh given the length of time between the shooting and the arrest.

The Crown submits that identification is one of the significant issues in this case. The appearance of Mr. Dosanjh a year after the offence will assist the jury.

There is no objection to the title “Arrest Photo of Raja Dosanjh, February 28, 2017”.

I presume that the photograph can be properly authenticated by a witness.

Given the significance of identification in this trial, this photo is relevant. I do not see any prejudice that will outweigh its probative value. It will be easy enough for the defence to point out the deficiencies of the evidence given the time difference. While there may be weaknesses in the evidence as a result of that cross-examination, it makes the photograph no less relevant or admissible.

[4] Based on that ruling, the defence placed on the record that they objected to any further identification photos but took the position that my earlier ruling would override those objections. Accordingly, the trial continued on without my review of any photographs or videos.

[5] Officer Hunt testified that he was part of a surveillance team on December 31, 2016. He observed Mr. Dosanjh at a residence in Brampton.

[6] Before Officer Hunt testified, another witness testified and entered a video allegedly of Mr. Dosanjh. That video was dark and of poor quality; it identified neither Mr. Dosanjh nor a license plate on the vehicle. I realized that this was one of the pieces of photographic evidence that the defence has objected to but not pressed.

[7] As a result of this turn of events, I realized that I had erred in failing to see and consider the various photographs and videos that were disputed by the defence.

[8] Accordingly, as Officer Hunt began to testify about what he had seen, I interrupted the trial to be certain of the photograph that was proposed to be tendered. The jury waited while we considered the issues.

[9] The photograph taken by Officer Hunt is now exhibit ‘A’ to his evidence.

[10] That photograph is of rather poor quality. It shows Mr. Dosanjh from the chest up apparently through a gap in a sliding door. He is looking at his cell phone, with the hood of his jacket over his head. Although his face is down, it can be seen from his chin to his hairline.

[11] The defence then submitted its objections to this photograph. The defence argues that it has little probative value, particularly in light of the photograph already admitted.

[12] In response, the Crown submitted that the photograph was admissible and relevant because one witness had earlier testified that the shooter had a hood over his head. Another witness had testified that the shooter was white and looking down. That witness said that the shooter was looking down, and this too is a photograph of Mr. Dosanjh looking down.

[13] In my view the prejudicial value of this photograph far exceeds its probative value.

[14] In R. v. Kinkead, [1999] O.J. No. 1498, Laforme J. was asked to exclude photographs. He stated at para 3:

Today the test that must be applied by a court when considering this issue is found in R. v. P.(R.) . That is:

1. The judge must determine the probative value of the evidence assessing its tendency to prove a fact in issue in the case including the credibility of the witnesses.
2. The judge must determine the prejudicial effect of the evidence because of its tendency to prove matters which are not in issue ... or because of the risk that the jury may use the evidence improperly to prove a fact in issue.
3. 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.[Citations removed]

[15] Further, in R. v. Araya, 2015 SCC 11, Rothstein J approved the trial judge’s warning about a similar photograph. McMahon J., as the trial judge, said:

Now, you have photographs of what Mr. Araya looked like five days after the shooting. I believe his evidence and Ms. Cooke’s [sic] was that is what he looked like about that time of October 3. You can consider whether he fits or does not fit the vague descriptions provided by the various witnesses. You cannot, of course, however, conclude based only on the vague descriptions [and] what Mr. Araya looked like in the photographs, that he must be the person. That would be completely improper since the descriptions are so vague and people can’t identify anyone. If there are features described which are dissimilar to the accused, they may be used to demonstrate that the accused was not present.

[16] One witness testified that he saw an individual running from the scene with a hoodie up. The simple fact that Mr. Dosanjh has his hoodie up in this case, creates a dangerous leap of logic. A lot of people have their hood up; that does not identify them as the shooter in issue.

[17] Another witness described the shooter as bent over and shooting. However, that witness saw the shooter from the rear and did not see the shooter’s face. There is nothing here to connect Mr. Dosanjh’s picture from the front to assist that witness to the rear.

[18] I could not be certain that this accurately shows Mr. Dosanjh’s skin colour at the time. One witness described the shooter was white. The Crown seeks to compare this photo to that description. I provided brief reasons at the request of the Crown. After those comments, the Crown submitted that the officer could testify to the accuracy of the colouring of Mr. Dosanjh in this picture. I allowed her to do so but she declined to accept that offer. Be that as it may, the jury already has a police photo of Mr. Dosanjh. It will certainly be a more accurate depiction of Mr. Dosanjh’s colour than this proposed exhibit. Another photo will not add any probative value to offset the prejudicial value set out above - even with the appropriate charge.

Exhibit ‘B’

[19] Exhibit ‘B’, is made up of three photographs of Mr. Dosanjh walking. I am advised that the witness will testify that these pictures were taken January 5, 2017.

[20] Witnesses describe the shooter as tall and thin. There is other evidence to suggest that the man in issue is approximately 6’6”. Mr. Dosanjh is a very tall man.

[21] The defence objects to these photographs as having no probative value and great prejudicial value. As the Crown has other items of evidence relating to Mr. Dosanjh’s height, it does not need further evidence of his height. Further, only one of the pictures shows any part of Mr. Dosanjh’s face, and to that extent it is obscured. The defence submits that jury has had ample opportunity to see Mr. Dosanjh in the courtroom and are aware of his height.

[22] In response, the Crown submits that this is further evidence of Mr. Dosanjh’s height. Although Mr. Dosanjh’s face is obscured, the testifying officer will identify him. The Crown specifically points to the fact that this is the first evidence of a combination of Mr. Dosanjh’s height and a confirmed identification of Mr. Dosanjh.

[23] In my view, these photographs are admissible as circumstantial evidence of whether Mr. Dosanjh has any of the physical attributes described by the witnesses. The principle issue in this trial is identification. The shooter is described as tall and thin. Although the Crown may have other evidence of Mr. Dosanjh’s height, there can be no ruling that the Crown cannot have more evidence of height.

[24] This is the first time that the individual in photographic or video evidence is both tall and confirmed as Mr. Dosanjh. Other video evidence shows a tall person, but it is disputed that Mr. Dosanjh is the individual in those photographs.

[25] Although it is true that the jury has seen Mr. Dosanjh for each day of court, there are four gowned lawyers between the jury and Mr. Dosanjh. From my angle, I cannot be certain what the jury can see of Mr. Dosanjh.

[26] As in Araya, a jury caution will be necessary but that can deal with any prejudice. Accordingly, these photographs are admissible.

Exhibit ‘C’

[27] Exhibit ‘C’ is a video of Mr. Dosanjh in a retail establishment. The video is taken from the store security camera. I am advised that it will be entered simply by the officer who observed Mr. Dosanjh that day and seized the video. It shows Mr. Dosanjh standing and waiting and texting at the cash.

[28] The defence objects to the video as not probative and highly prejudicial.

[29] In contrast, the Crown submits that this is further evidence of Mr. Dosanjh’s height and his mannerisms.

[30] In my view, the video is relevant and admissible.

[31] One of the other significant pieces of evidence is a video of the man who apparently rented the “get away vehicle.” The manner in which that individual stands and waits may well be of some circumstantial benefit to the jury in knowing how Mr. Dosanjh stands and waits.

[32] Again, the prejudice must be reduced by the appropriate charge. In that case, the probative value will outweigh any prejudicial concerns.

“Justice Lemon” Lemon J. Released: July 23, 2019