COURT FILE NO.: YC-18-000071
DATE: 20190731
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
R.D. and T.S.
Defendants
M. Rumble, for the Crown
M. Owoh, for the Defendant R.D., R. Chartier for the Defendant T.S.
HEARD: June 26, 2019
RESTRICTION ON PUBLICATION
Pursuant to subsection 110(1) of the Youth Criminal Justice Act, no person shall publish the name of a young person, or any other information related a young person, if it would identify the young person as having been dealt with under this Act. This judgment complies with this restriction so that it can be published.
RULING ON ADMISSIBILITY OF NON-EXPERT RECOGNITION EVIDENCE
edwards J.:
Overview
[1] On January 30, 2017, Mr. Antonecchia and Ms. An who were boyfriend and girlfriend, went out for a late dinner at a local Korean restaurant. Unfortunately, the restaurant was closed. Shortly thereafter, they were accosted by two individuals they could only describe as young black males, as their faces were largely obscured by the dark hoodies they were wearing.
[2] During the altercation, Mr. Antonecchia was shot in the abdomen and his mother’s 2005 Ford Focus black sedan was stolen. The issue this court will have to determine is the identity of the two perpetrators.
[3] Security video footage of the housing complex where both R.D. and T.S. live, shows two individuals walking around the complex and ultimately heading to the area where there is Toronto Transit Commission TTC bus service (“TTC”). Neither of the individuals in the housing complex video can be identified.
[4] Two black males get on a TTC bus at approximately 10:30 p.m. One of the individuals is seen wearing a black hoodie with the word “Nike” prominently displayed on the front. I will refer to this person as the “Nike guy”. The Crown wishes to call non-expert recognition evidence from two police officers who will identify the Nike guy from the TTC video as T.S., based on their prior dealings with T.S. The defence does not dispute that one of the proposed witnesses, Sergeant Dominey (“Dominey”), has sufficient familiarity with T.S. to place him in a better position than me, the trial judge, to identify the Nike guy as T.S., and offer non-expert recognition evidence.
[5] These Reasons will explain why the other police witness, Detective Constable Rossi (“Rossi”), will not be permitted to offer non-expert recognition evidence.
The Facts - Rossi’s Familiarity with T.S.
[6] Rossi has worked in 31 Division in Toronto for 13 years and is a member of the Toronto Police Service (“TPS”).
[7] The evidence relied upon on this application comes from Rossi’s evidence at the preliminary inquiry. Rossi testified that he had “probably” seen T.S. when he may have had a small exchange of words with T.S. that amounted to little more than “Hi”. He also stated that he “probably” had seen T.S. another 5 to 10 times where no words were spoken. Rossi has no notes of any of these interactions with T.S.
[8] As to when the interactions occurred, Rossi testified that they would have been in and around 2010, as well as a possible contact in 2016, that he admitted was a guess. If the majority of the contact occurred in 2010, T.S. would have been 10 or 11 years of age. All counsel concede that the physical appearance of T.S. would have changed from a time period when he was 11, to the time period in 2017 when he is alleged to have committed the offences before the court. In 2010 he was a child, and undoubtedly looked like a child. In 2017, he was a teenager in his late teens and looked like a teenager.
Position of the Crown
[9] Both the Crown and the defence acknowledge that the quality of the video from the TTC bus is not high quality video. As such, from the perspective of the Crown it is argued that it would be of assistance to the court to have someone familiar with T.S. to identify him from the TTC video. As a point of comparison, the Crown notes that there is a big difference between T.S. as he is depicted in the booking video and mugshot that was taken of him in 2017, as well as a mugshot that was taken of him in 2016, from how T.S. depicts today from a physical perspective. As it relates to the anticipated evidence of Rossi, the Crown argues that Rossi would have seen T.S. approximately two years ago, but at a time relatively approximate to when the incident occurred and when T.S. was a younger man. As such, Rossi would be in a far better position than the court to identify T.S. from the video.
[10] As for the other occasions prior to the carjacking, Crown counsel argues that Rossi’s evidence more than meets the test set forth in R. v. Farah, [2016] O.J. No. 2296, where it is established that Rossi had a “prior acquaintance” with T.S., and as such is in a “better position” than this court to identify T.S.
Position of the Defence
[11] Mr. Chartier notes that the evidence of Rossi from the preliminary inquiry establishes that those occasions when he saw T.S. resulted in very little in the way of exchange of words, and because he had no notes he did not know when, where, or what T.S. was doing or wearing. Every occasion was a very brief occurrence, none of which amounted to a memorable event. None of the interactions between Rossi and T.S. prior to the carjacking arose out of a significant and memorable investigative event, but rather adopting the language of K.L. Campbell J. in Farah at para. 27, were nothing more than “momentary ephemeral exchanges”.
The Law
[12] It is accepted by both counsel that a non-expert witness may provide opinion recognition evidence, that the image of someone displayed in a photograph or on a video is a particular individual known to them, provided 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 (see Farah).
[13] On a voir dire, the prior acquaintance branch of the test will allow the trial judge to determine whether the proposed witness is sufficiently familiar with the person sought to be identified to have “some basis for the opinion”. There is no need for the prior acquaintance to be lengthy. The duration of the acquaintance goes to weight and not admissibility (see R. v. Berhe, 2012 ONCA 716, at para. 21, and R. v. Dirie, 2013 ONCA 261, [2013] O.J. No. 1873 (C.A.), at para. 3.
[14] Similarly, the reliability of recognition evidence is a matter of weight and ultimate reliability for the trial judge. An attack on reliability does not go to admissibility (see R. v. Walker, 2013 O.J. No. 6632, at paras. 36-39).
[15] There are three indicia that may assist the court in dealing with the admissibility of non-expert recognition evidence. These indicia include:
the length of the prior relationship between the witness and the accused;
the circumstances of their prior relationship; and
the recency of contact prior to the event where the witness recognized the accused. (See R. v. Mathias, [2018] O.J. No. 752 at para. 28; R. v. Brown, 2006 CanLII 42683 (ONCA) at para. 39 and R. v. Briand, [2008] O.J. No. 5202 at para. 23).
Analysis
[16] On the facts before this court, there are occasions when most of the interactions between Rossi and T.S. occurred at a point in time when T.S., on all accounts, would have been a child. Those occasions were never documented in Rossi’s notes, were of a fleeting nature and did not arise from any memorable investigation.
[17] It cannot be said from Rossi’s evidence at the preliminary inquiry that he had any lengthy relationship with T.S., nor were the circumstances of their prior relationship (if one can call it a prior relationship), such that any interaction between T.S. and Rossi would allow Rossi to be sufficiently acquainted with T.S. to allow him to reliably identify the Nike guy as the person in the video interacting with Mr. Antonecchia and Ms. An.
[18] As for the one interaction that Rossi had with T.S. after the carjacking and shooting, this was an event that was set up by a fellow officer. While Rossi may have attended at the residence of T.S. with the purpose of returning a cell phone, in my view the real purpose of that visit had everything to do with using that interaction to identify T.S. as the Nike guy on the TTC video. Rossi’s contact with T.S. on March 31, 2017 amounts to post-identification recognition evidence. This issue was addressed by Polowin J. in R. v. Farhan, 2013 ONSC 7094, [2013] O.J. No. 5519. At para. 39, Polowin J. determined that there was no jurisprudence to support the proposition that non-expert lay opinion was admissible where it arose out of post-identification recognition contact. I agree.
[19] There may be circumstances in the future where post-recognition contact may be admitted into evidence as non-expert recognition evidence. On the facts before this court, however, Rossi was specifically instructed by his superior officer to attend at the residence of T.S. and take specific notice concerning his appearance. Rossi did not attend at T.S.’s residence simply to deliver a cell phone. In my view, this taints the whole purpose for which Rossi went to T.S.’s residence, and taints the admissibility of any opinion that he might have offered to this court purporting to identify T.S. as the Nike guy. If the circumstances had been such that Rossi had some meaningful contact with T.S. after the carjacking and was completely unrelated to the ongoing investigation, the result might have been different.
[20] In the result, as I had advised counsel during the course of the trial, this court would not allow non-expert recognition evidence from Rossi. The Crown’s application insofar as it relates to the admissibility of Rossi’s non-expert recognition evidence is dismissed.
Justice M.L. Edwards
Released: July 31, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
R.D. and T.S.
Defendants
ruling on ADMISSIBILITY OF NON-EXPERT RECOGNITION EVIDENCE
Justice M.L. Edwards
Released: July 31, 2019