Court File and Parties

Court File No.: CRIMJ(P)995/18 Date: 2020 02 18 Amended: 2020 03 13

Superior Court of Justice – Ontario

Between: Her Majesty the Queen, Applicant Counsel for the Crown: Carson Coughlin & Darilynn Allison

- and -

Travis Babbington, Respondent Counsel for the Accused: Maurice Mattis and Monte McGregor

Heard: February 5th, 2020

Reasons for Decision

Lemay J

[1] On February 20th, 2017 Jahsavior Reid was shot to death in his room at the Motel 6 on Steelwell Road in Brampton by four men. The Crown alleges that the accused was one of the four shooters, and he has been charged with first degree murder. The individuals who shot Mr. Reid were caught on videotape.

[2] The Crown is seeking to lead the evidence of Melanie Lee, a customer service representative at the hotel, in order to identify the accused as one of the four alleged shooters visible on the videotape. The Crown relies on the principles in R. v. Leaney, [1989] 2 S.C.R. 393 in support of its position and argues that the accused was well known to Ms. Lee. Therefore, the Crown argues that her evidence is admissible as “recognition” evidence.

[3] The defence opposes the Crown’s position, and argues that Ms. Lee does not have sufficient exposure to the accused to be in a better position to identify the accused than the trier of fact would be.

[4] For the reasons that follow, Ms. Lee will not be permitted to provide “recognition evidence” or otherwise testify that she recognized Mr. Babbington as one of the people on the video recordings from the night of February 20th, 2017.

The Evidence

[5] I heard testimony from Ms. Lee, as well as reviewing videotapes from the Motel 6. I understand that those videotapes are kept by a third-party provider, and that there is no issue (for the purposes of this motion) about the authenticity or continuity of those videotapes.

[6] Ms. Lee testified that she had been employed by the Motel 6 on Stilwell Road in Brampton for approximately 20 years. For the bulk of her employment, she has worked at the front desk.

[7] She testified that she had not been working the night of the murder, but that she had heard about it on the news either the night it happened or early the next morning. However, when she came to work the next morning for her 7:00 a.m. shift, one of her colleagues (“Sunny”) asked her to look at a videotape and see if she knew who the person was. On Ms. Lee’s evidence, Sunny did not tell her anything about the person on the videotape, but just asked her to view the videotape.

[8] The excerpt of the videotape that Ms. Lee viewed is less than twenty seconds long. The video that Ms. Lee reviewed shows four people climbing a set of stairs in a stairwell. Facial features are not visible because all four individuals are wearing hoddies. For half of the video, the person that Ms. Lee identifies as the accused had his back to the video camera. Although there were other videos of this group of men, Ms. Lee did not view them in making her identification of the accused.

[9] She viewed this videotape and stated that she recognized at least one person in it, and would need to check some records for his name. Ms. Lee then checked those records and identified the accused by name.

[10] The reason that Ms. Lee gave for recognizing the accused was twofold. First, that she had seen him around the hotel on a number of occasions over the past few months. She and Sunny had seen the accused around enough that Sonny had given him the nickname “Kevin Hart”.

[11] I understand that Mr. Hart is a black comedian. When asked why they gave the accused the nickname Kevin Hart, Ms. Lee testified that it was because the accused had a smaller build, and was always moving around and talking all the time. Ms. Lee also testified that a number of the housekeepers had given the accused the nickname “Boom” because that was something he would say when he was excited.

[12] Ms. Lee had also had an interaction with the accused in the morning February 10th, 2017. In that interaction, the accused approached Ms. Lee, who was working at the front desk, and asked for a key to a room that he was not registered as a guest. Ms. Lee testified that this was not the first time that the accused had asked for a key to a room that he was not registered to. Ms. Lee testified that she told the accused no, as she had in the past.

[13] Ms. Lee testified that the accused then asked to use the telephone. He made a telephone call, and started to badmouth Ms. Lee. She advised the accused that, if he continued in his behavior, she would call the police. Ultimately, she did call the police and they attended at the hotel.

[14] The accused’s identity was obtained by Ms. Lee, who put his name on a list of people that the hotel would not rent rooms to. The accused was allowed to finish in the hotel that morning, and then left. Ms. Lee testified that she observed him a couple of times on the video camera that morning.

[15] In terms of her previous interactions, Ms. Lee testified that she had seen the accused on a number of occasions around the hotel, and had dealt with him at the front desk on approximately five occasions. The interactions at the front desk were usually when the accused needed a key, because the room he had rented was not in his name.

[16] In terms of the video taken the night of the murder, Ms. Lee testified that she was able to identify the accused based mainly on his outfit, and a distinctive jacket that he was wearing. She also testified that he walked at a quicker kind of jittery pace when he walked, and that he was a bit bow legged when he walked. Finally, she mentioned that the person in the video had the same walk, build and mannerisms as the accused.

[17] I should also note that Ms. Lee conducted a police line up after having identified the accused, and was able to pick his photograph out of a line up. No issues were raised about the manner in which the lineup was conducted.

Law and Analysis

[18] The test for admitting recognition evidence is set out in Leaney, supra. Evidence of identity will be admitted where the witness is in a better position than the trial judge to say whether the person shown in the video is the accused. This test has been confirmed in a number of more recent cases (see, for example, R. v. Brown, 2006 ONCA 42683, 215 C.C.C. (3d) 330 and R. v. Alexander, 2012 ONSC 6002).

[19] Recognition evidence is a form of identification evidence. As a result, it comes with all of the risks and problems that are inherent in identification evidence (see R. v. Olliffe, 2015 ONCA 242 and R. v. M.B., 2017 ONCA 653).

[20] Crown counsel argues that the question I have to decide is the threshold question of admissibility. On this hearing, it is not up to me to assign the weight to be given to this evidence. That is a question for the trier of fact to determine.

[21] I agree with Crown counsel’s statement of the law. However, it is worth considering the circumstances when this evidence will be admitted. In particular, I find the following passage from Brown, supra, instructive. At paragraph 39, Rosenberg J.A. states:

[39] As to the other concerns that amicus raises with respect to the recognition witnesses, I am satisfied that the trial judge was correct to admit the evidence. In R v. Leaney (1989), 50 C.C.C. (3d) 289 at 303, the Supreme Court of Canada held that this type of non-expert opinion evidence is admissible provide that the witness has a prior acquaintance with the accused and is thus in a better position than the trier of fact to identify the perpetrator. All the witnesses whose testimony was admitted by the trial judge fell into this category. For example, one witness was the appellant’s aunt and had known him for years. Another witness had been his partner for some time. The recognition evidence was also important because the appellant had changed his appearance since the robbery, five years earlier, and the recognition witnesses were familiar with the appellant’s appearance at times close to the robbery. The various witnesses explained why they recognized the appellant as the man in the videotape. The jury was thus in a position to evaluate the probative value of their evidence.

[22] These examples should be contrasted with the examples in M.B., supra. In M.B., the Court of Appeal excluded the evidence of three witnesses who had seen the accused for short periods of time (sometimes just minutes) on a number of occasions in the months prior to the incident giving rise to the charges. The Court of Appeal found that a conviction on the basis of this evidence was an unreasonable verdict. In M.B. supra, the Court of Appeal was concerned with the reliability of the evidence and I am dealing with the threshold question of admissibility. However, the question remains as to whether the limited time that Ms. Lee has seen the accused meets the test for admissibility under Leaney, supra.

[23] In this case, I am faced with a case where Ms. Lee has seen the accused on several occasions prior to the videotape that she reviews. However, I am not persuaded that she should be allowed to offer “recognition” evidence that it is the accused on the videotape from the night of the murder.

[24] I reach this conclusion for the following reasons:

a) Ms. Lee made her identification on the basis of a video clip of approximately twelve seconds in duration. Having viewed the video clip, it is clear that Ms. Lee cannot see any of the facial features of the person she alleges is the accused. Her identification, therefore, is based on a combination of the person’s clothing and their gait. b) The person identified as the accused is walking up stairs in the videotape. I heard no evidence that Ms. Lee saw the accused walking up a staircase at any point prior to watching this videotape. As a result, her assertion that she recognized the accused from his gait and his bowlegged walk is difficult to accept. I reach this conclusion both because of the length of the video, and the fact that it is possible that a person’s gait will change when they walk up and down stairs. I had no evidence that Ms. Lee ever saw the accused walking up and down stairs. c) Instead, I am concerned that Ms. Lee recognized the accused primarily because of the distinctive jacket that was being worn by one of the alleged culprits the night of the murder. Certainly, it was the first identifying feature that Ms. Lee mentioned. This jacket appears to be very similar to one the accused was wearing at the time of the February 10th, 2017 incident. Identifying a person based on the clothing that they are wearing is not the intention of the principle in Leaney. Clothing is not a unique identifier. d) Ms. Lee had limited exposure to the accused prior to the February 10th, 2017 incident. While the accused had been nicknamed “Kevin Hart”, Ms. Lee had interacted with the accused for minutes at a time (at most) over the couple of months prior to the murder. Her total exposure to seeing the accused would have been less than an hour.

[25] I acknowledge the Crown’s argument that Ms. Lee has seen the accused outside the courtroom, and will have seen him walk and move around in a more natural environment than the Courtroom. The jury will not have this opportunity. The problem, however, is that Ms. Lee’s evidence is based on a very limited exposure to the accused. As a result, I am not persuaded that Ms. Lee is in any better position than the trier of fact (the jury) to identify the accused as the person in the February 20th, 2017 videotape.

Conclusion and the Scope of Evidence

[26] For the foregoing reasons, I conclude that the Crown may not lead evidence from Ms. Lee identifying the accused in any of the surveillance video from February 20th, 2017.

[27] It appears to me that Ms. Lee may still be a relevant witness. This ruling is not intended to circumscribe Ms. Lee’s ability to provide relevant and admissible testimony. However, Ms. Lee will not be able to identify the accused as the person in the video on February 20th, 2017.

Lemay J

Released: February 18, 2020 Amended: March 13, 2020