COURT FILE NO.: CR-17-912

DATE: 20190128

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JORDAN OSBORNE

Defendant

Lisa Wannamaker for the Crown

Magdalena Wyszomierska and Sharon Jeethan for Mr. Osborne

HEARD: January 28, 2019

ruling on admissibilty of autopsy photographs

BOswell J.

[1] Mr. Osborne is alleged to have killed a man by striking him repeatedly in the head with a hammer.

[2] One of the principal issues for trial is Mr. Osborne’s state of mind at the time he is alleged to have struck the deceased.

[3] The cause of death is not contested. The deceased perished as a result of blunt force trauma to his head.

[4] As is customary, the Crown intends to call the forensic pathologist who conducted the post-mortem examination of the deceased to testify as to the cause of death. The Crown seeks to introduce a series of some eleven photographs taken during the examination and showing various injuries to the torso and head of the deceased.

[5] The defence contests the admissibility of just two.

[6] The legal framework for the determination of this contested issue is well-settled and straightforward. The court must balance the probative value of the evidence against its potential to prejudice the fair trial right of Mr. Osborne. The framework was described by Justice Fuerst in R. v. Wills, [2007] O.J. No. 52, citing R. v. P.(R.) (1990), 58 C.C.C. (3d) 334:, as follows:

(a) First, the judge must determine the probative value of the evidence by assessing its tendency to provide a fact in issue (including the credibility of witnesses);

(b) Second, the judge must determine the prejudicial effect of the evidence because of its tendency to prove matters that are not in issue or because of a risk that the jury may use the evidence improperly;

(c) Third, the judge must balance the probative value of the evidence against its 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, and taking into account the effectiveness of any appropriate limiting instructions.

[7] The two photographs in issue may be briefly described as follows:

(i) The first centres on the head of the deceased. It illustrates two large, red, circular contusions just behind the left ear. One includes what appears to be about a 1 cm long laceration. The face of the deceased is visible, though facing downward;

(ii) The second centres on a full thickness laceration on top of the skull, with what appears to be an underlying hole in the skull of the deceased. Again, the deceased’s face is visible in the photograph, although not clearly.

[8] The Crown asserts that the photographs are relevant and probative to illustrate the facts upon which the pathologist arrived at his opinion; to show the nature and extent of the wounds and the level of force applied to the head of the deceased – which are relevant to the issue of the intentions of Mr. Osborne; and to link the head injuries to the hammer purportedly used by Mr. Osborne.

[9] Defence counsel submit that the impugned photographs are prejudicial to Mr. Osborne, not just because of their graphic nature, but because they show the face of the deceased along with the injuries in issue. They are, moreover, redundant because other photographs tendered by the Crown adequately demonstrate the same injuries, but without showing the face of the deceased.

[10] I agree with the comments of Justice LaForme in R. v. Kinkead, [1999] O.J. No. 1498, as cited by Justice Dambrot in R. v. Currie, 2000 CanLII 22822 (ON SC), [2000] O.J. No 392 at para 9. Specifically that trial judges must consider the prejudicial impact of crime scene or autopsy photographs through a lens of “contemporary common sense”.

[11] That is to say, we all know that jurors are exposed in the news, movies, and television shows to graphic depictions of violence and injury. There is, to some degree at least, a numbing effect to such exposure. At the same time, I am of the view that there is something qualitatively different about viewing graphic images of injuries in the context of a court case, where jurors know that what they are looking at are real and life altering, or even life-terminating injuries. We know from increasing attention to the health and well-being of jurors that exposure to the horrific aspects of violent crime can and does impact significantly on jurors emotionally and psychologically.

[12] Hence the continued need to be cautious and to carefully balance probity and prejudice in terms of photographs of the type on offer here.

[13] In my view, the impugned photographs are undoubtedly relevant and significantly probative. The first photograph demonstrates two circular contusions. The evidence adduced to date suggests that the deceased was struck with both a bat and a hammer. Mr. Osborne is alleged to have wielded the hammer. The contusions appear to be far more consistent with a hammer strike than the strike of a baseball bat.

[14] The second photograph demonstrates a severe blow to the top of the head of the deceased. It is consistent with blunt force trauma and the apparent hole in the skull is consistent with evidence that the court has heard to the effect that Mr. Osborne’s last strike resulted in the hammer head becoming embedded in the skull of the deceased. Moreover, it is evidence the Crown will want to point to as supportive of an intent to kill, given the location of the strike and the obvious force behind it.

[15] Having said that, these same injuries are clearly visible in two other photographs that defence counsel do not take issue with. Indeed the non-contested photographs are close-ups of the injuries in issue. Unlike the contested pictures, however, they do not show the face of the deceased.

[16] Given that the goals of the Crown can be accomplished with the non-contested photographs, I am of the view that the contested pictures are redundant and, in the result, not particularly probative. One the other hand, the presence of the face of the deceased may well be more emotionally troublesome for the jurors. Moreover, there is a cumulative impact of seeing multiple photographs of the same injuries which is, in my view, avoidable here.

[17] In the result, I conclude that the two pictures in issue, numbered 256 and 259 should be excluded from evidence.

Boswell J.

Released: January 28, 2019