Her Majesty the Queen v. Travis Babbington, 2020 ONSC 1589

COURT FILE NO.: CRIMJ(P)995/18 DATE: 2020 03 13

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen Applicant

• and -

Travis Babbington Respondent

COUNSEL: Carson Coughlin & Darilynn Allison, Counsel for the Crown Maurice Mattis and Monte McGregor Counsel for the Accused

HEARD: February 26th, 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 Dejaunte Blake, who was the accused’s girlfriend at the time, in order to identify the accused in excerpts from the videotape that were taken at the hotel in the few minutes prior to the shooting of Mr. Reid. The Crown relies on the principles in R. v. Leaney (, [1989] 2 S.C.R. 393) in support of its position. The defence is opposed to the admission of this evidence. This is the second Leaney application in this case. The first is reported at 2020 ONSC 1000.

[3] I provided the parties with a bottom line decision that Ms. Blake would be allowed to provide this evidence to the jury. I provided this decision the morning after the motion was argued, as Ms. Blake was in the midst of testifying before the jury when this issue arose. What follows are my reasons for that decision.

The Positions of the Parties

[4] The Crown argues that Ms. Blake’s evidence is admissible as “recognition” evidence under the principles in Leaney, supra. The Crown argues that Ms. Blake had been in an intimate relationship with the accused for some months, and that she was well positioned to identify the accused in the videotapes. The Crown also argues that the factors that Ms. Blake points to in support of her identification include facial features, gait and clothing, which are factors that are generally supported under a Leaney application.

[5] The defence opposes the Crown’s position, and argues that the relationship was not so significant or lengthy as to put Ms. Blake in a better position, three years later, to identify the accused. In addition, defence Counsel points to the failure of Ms. Blake to identify the accused based on anything other than the jacket when she gave her statement to police in May of 2017. Finally, defence Counsel argues that the quality of the video is such that it is difficult to make out specific facial features of the accused. On these grounds, defence Counsel requested that I deny the Crown’s motion.

The Evidence

[6] All of the parties agreed that a voir dire was necessary in order for me to consider the threshold question of admissibility (see R. v. Behre, 2012 ONCA 716 at para 24 and following). In addition, counsel also agreed that, although Ms. Blake had only testified in chief before the jury, I could consider all of the evidence she had provided up to the point of the voir dire in reaching my decision. On the voir dire, I heard additional testimony from Ms. Blake, and she was subject to cross-examination by counsel for the accused.

[7] I also reviewed the videotapes from the Motel 6 that the Crown was seeking to have Ms. Blake consider. The videotapes had already been entered as exhibits on the trial for the jury’s consideration. Therefore, there was no issue about their admissibility or authenticity for the purposes of this motion.

[8] It is useful to divide the evidence on this motion into two parts: the relationship between Ms. Blake and the accused; and the evidence from the evening of the shooting.

a) The Relationship

[9] Ms. Blake met the accused at a party in August of 2016. They exchanged telephone numbers, and he tried to contact her a couple of times after the party. She originally ignored him, but decided that she wanted to go and hang out with him one day in September when she was not at work.

[10] Ms. Blake and the accused began dating shortly after that day in September, and hung out on a regular basis. Ms. Blake would drive the accused places as he did not have a car. In addition, they would hang out almost every day, and would spend the whole afternoon (and sometimes the whole day) together. They would spend both days and nights together.

[11] Ms. Blake testified that she had seen the accused walk and run, and testified that she could pick him out walking along a street or in a video. She also testified that, from the time she met the accused in 2016 until February of 2017 his mannerisms and physical appearance did not change.

[12] The accused and Ms. Blake had some bumps in their relationship. Specifically, in October, they were not a couple for approximately a week, and then got back together. They had another short period where they were not together in January of 2017. At the time of the shooting in February of 2017, they were together as a couple.

[13] The relationship ended shortly after the accused was arrested at the beginning of May, 2017. At that time, Ms. Blake gave a statement to the police. It spanned a period of approximately nine hours. As part of the statement, Ms. Blake was asked to review some of the videos from the Motel 6. She spent less than two minutes reviewing the videos, and was then asked some questions about them by the interviewing officer. In the course of her police interview, Ms. Blake stated that she thought the person she identified at the voir dire as the accused was the accused, and she was basing that identification on his jacket. This evidence was put to Ms. Blake on cross-examination and she confirmed that this is what she told the police.

[14] Finally, on the voir dire, Ms. Blake confirmed that it had been almost three years since she had last seen the accused.

b) The Evidence from the Evening of the Shooting

[15] During the voir dire, approximately twenty to thirty seconds of video was played several times. This video shows someone walking up to the front entrance of the hotel, through the doors of the hotel and through the lobby. This video was put together on three different cameras.

[16] On the voir dire, Ms. Blake testified that she could identify the person in the video as the accused. She made this identification on the basis of his chin, nose and mouth as well as the way that he walked and his lilt.

[17] In the video, the person identified by Ms. Blake as the accused was wearing a jacket with a distinctive dragon design on it. In cross-examination, Ms. Blake agreed that a predominant feature was the jacket but that she could identify him based on other factors. She was consistent that there were factors beyond the jacket that allowed her to identify the person in the video as the accused.

[18] In cross-examination, Ms. Blake also agreed that she couldn’t identify any particular features of the person in the video, and that she had viewed the videotape when she gave a statement to police back in May of 2017. In addition, Ms. Blake agreed that the video was blurry for the most part. However, Ms. Blake maintained her evidence that it was the accused that was depicted in the videos.

Law and Analysis

[19] 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, 215 C.C.C. (3d) 330 and R. v. Alexander, 2012 ONSC 6002).

[20] 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).

[21] 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.

[22] I agree with Crown counsel’s statement of the law. In addition, 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.

[23] 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. Although the Court of Appeal in M.B. was concerned with the reliability of the evidence, the examples are still instructive as to when the evidence should (and should not) be admitted.

[24] In this case, I am faced with a case where Ms. Blake, the recognition witness, knows the accused and was in an intimate relationship with him for a period of almost a year. During that relationship, she had very regular contact with the accused, and regularly saw him for hours at a time.

[25] I am of the view that Ms. Blake’s recognition evidence should be admitted, and an appropriate instruction on the use and limits of this evidence should be provided. I reach this conclusion for the following reasons:

a) At the time of the video, Ms. Blake had been involved in an intimate and significant relationship with the accused for some period of time. Given both the nature and the length of her relationship, Ms. Blake is in a better position than the jury to identify the accused from the video. b) Ms. Blake was able to identify specifics about the accused from the video, including his facial features and his walk. c) Although the video is not high quality, the picture is still clear enough that specific features can be made out in the images, especially if the video is paused as it was during the voir dire. d) Problems with Ms. Blake’s evidence, including any issues with the quality of the videotape, the fact that Ms. Blake did not point to anything other than the jacket when she was interviewed by the police in May of 2017 and the length of the videotape are all issues that go to weight and not admissibility.

[26] In particular, I acknowledge the Defence’s argument that Ms. Blake’s statement to the police appears to have inconsistencies in it. However, that is a matter for cross-examination and instruction in the jury charge rather than a threshold issue of admissibility.

Conclusion and the Scope of Evidence

[27] For the foregoing reasons, I conclude that the Crown is permitted to lead evidence from Ms. Blake identifying the accused in the surveillance video from February 20th, 2017. This evidence is limited to the portion of video from the point that shows the individual walking up to the hotel entrance to the point where this person walks past the front desk.

LEMAY J Released: March 13th, 2020