COURT FILE NO.: YC-20-8000000-5-0000
YC-20-8000000-6-0000
DATE: 20210423
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
T.I.
M. Cole and P. Santora, for the Crown
M. Salih and E. Brownscombe, for T.I.
HEARD: 22-23 March 2021
PUBLICATION BAN:
s.110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED-(1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.
s. 129. NO SUBSEQUENT DISCLOSURE- No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.
Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:
- OFFENCES - Every person who contravenes subsection 110(1) (identity of offender not to be published), 111 (1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .
(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
s.a.Q. akhtar j.
RULING ON THE CROWN’S LEANEY APPLICATION
FACTUAL BACKGROUND AND OVERVIEW
Introduction
[1] T.I. stands charged with second degree murder of Israel Edwards.
[2] The allegations arise from a shooting that occurred on 30 May 2018 at Dundas Square in Toronto. The Crown alleges that as T.I. and two friends, M.M. and M.H., were walking east along Dundas Square, they encountered Aaron Stewart and Mr. Edwards. For reasons that are unclear, an altercation ensued. Mr. Stewart pushed M.M. backwards by placing his hand on his face. Without warning, the man alleged to be T.I., wearing a grey hoodie, pulled out a gun and began firing, grazing Mr. Stewart but hitting Mr. Edwards. As he fell to the ground, the rest of the group fled the scene.
[3] Police were called and Mr. Edwards was transported to St. Michael’s hospital. He was pronounced dead on arrival. A post-mortem report revealed Mr. Edwards died from a gunshot wound to his chest.
The Application
[4] This application centres on evidence found as a result of two search warrants. The first, executed at M.M.’s residence on an unrelated matter, led to the seizure of M.M.’s mobile phone. The second, at T.I.’s address, also led to the discovery of a number of mobile phones, including three belonging to T.I. When the phones were examined, police found numerous images and videos depicting both T.I. and M.M.
[5] In addition to the phones, police seized the Dundas Square surveillance video that captured the shooting.
[6] The Crown seeks to file this media at T.I.’s trial for the purpose of inviting the jury to compare them to the applicant in court pursuant to the principles set out in R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197.
[7] In conjunction, the Crown applies for leave to call witnesses to identify the applicant on the media in accordance with R. v. Leaney, 1989 CanLII 28 (SCC), [1989] 2 S.C.R. 393.
LEGAL PRINCIPLES
[8] In Leaney, the Supreme Court of Canada held that prior identification of an accused from photographs or videotape by a non-expert witness is admissible so long as the witness has a prior acquaintance with the accused and is in a better position than the trier of fact to identify the person who committed the crime. The rule was re-affirmed by Rosenberg J.A. in R. v. Brown (2006), 2006 CanLII 42683 (ON CA), 215 C.C.C. (3d) 330, at para. 39.
[9] In R. v. Berhe, 2012 ONCA 716, 113 O.R. (3d) 137, the court re-affirmed the test as being one where “the judge may or may not conclude that the potential witness is sufficiently familiar with the person whose identity is in question to be in a better position than the trier of fact to assist in making the identification. What weight is to be given to the evidence ultimately is a different consideration”: Berhe, at para. 19.
[10] The Court of Appeal in R. v. Hudson, 2020 ONCA 507, at para. 30, delineated the Berhe steps as two questions: (1) is the witness sufficiently familiar with the person being identified to have a basis for their opinion and (2) would the witness be in a better position than the trier of fact to make an identification based on the fact that they had some advantage in light of their familiarity?
[11] The court went on to say that the Leaney inquiry was aimed at assessing the level of familiarity with the accused. The process required taking take into account the nature of the witness’ past contact with the accused and its frequency: Hudson, at para. 31.
[12] The court, in Berhe, also laid to rest an emerging argument: that in addition to a prior acquaintance with an accused, there needed to be an ability to be able to identify unique features and show these on the videotape.
[13] Writing for the court, Blair J.A., at paras. 19-20, rejected this additional requirement. At para. 22, he added:
In my view, however, it is going beyond what is necessary for threshold admissibility to add another layer to the test requiring the recognition evidence witness to show that he or she can point to some unique identifiable feature or idiosyncrasy of the person to be identified. Such concerns are better resolved in determining the ultimate reliability of the evidence. There are many ordinary people who do not have any particular identifiable features or idiosyncrasies differentiating them from the normal crowd; people familiar with them may well be able to identify their photograph, however. In that respect, I think the following comment by Holmes J. in R. v. Panghali, 2010 BCSC 1710, [2010] B.C.J. No. 2729, at para. 42, is apt:
Common experience teaches that people have vastly different abilities to identify and articulate the particular features of the people in their lives that they know, recognize, and distinguish on a regular basis. Where a witness has but little acquaintanceship with the accused, his or her recognition evidence may be of little value unless the witness can explain its basis in some considerable detail. But at the other end of the spectrum, the bare conclusory recognition evidence of a person long and closely familiar with the accused may have substantial value, even where the witness does not articulate the particular features or idiosyncrasies that underlie the recognition. [Emphasis added]
[14] A slightly different note was struck in R. v. M.B., 2017 ONCA 653, 356 C.C.C. (3d) 234, on appeal of a conviction for aggravated assault and discharge of a weapon with intent. The offence arose out of an altercation in a bar. Three witnesses who testified to prior interaction with the accused identified him as the shooter from a video. On appeal, the court set aside the conviction and entered an acquittal as the identification evidence was not sufficiently reliable.
[15] The court in M.B. drew a distinction between threshold admissibility and ultimate reliability of the recognition evidence. In the former, particular idiosyncrasies of the person being identified were immaterial as a requirement for admissibility. In terms of ultimate reliability, however, the weight to be given to such evidence relied upon the identification of special or unique features. At para. 46, Juriansz J.A. remarked:
The issue in Berhe was the threshold admissibility of the recognition evidence. Berhe also confirmed the continued importance of unique identifiable features in determining the ultimate reliability of the evidence. The importance of unique identifiable features varies with how well the witness knows the person he or she identifies.
[16] See also: R. v. Benson, 2015 ONCA 827, 333 C.C.C. (3d) 180, at para. 26; R. v. McKenzie, 2018 ONSC 2763, at para. 9; R. v. Panghali, 2010 BCSC 1710, at para. 42, aff’d 2012 BCCA 407, 328 B.C.A.C. 256, at paras. 70-80.
THE PROSPECTIVE LEANEY WITNESSES
[17] In its application, the Crown seeks to call five witnesses, three of whom it claims have sufficient familiarity with T.I. to be able to identify him on the media it intends to lead. The Crown also wishes to call witnesses to identify M.M. and M.H. on both the Dundas Square video and material found in the mobile phones.
Detective Constable Michael Van Belleghem (T.I. and M.M.)
[18] The Crown argues that Detective Constable Van Belleghem’s investigative role in charges laid against M.M. with respect to a shooting that occurred on 15 June 2018 at White Oaks Court, in Whitby, places him in a unique position to identify not only M.M. but also T.I. For the following reasons, I agree.
Identification re: M.M.
[19] Detective Constable Van Belleghem worked in the Durham police department and, in June 2018, investigated M.M. on an unrelated shooting incident. As described, as part of this investigation, police obtained a search warrant which led to the seizure of M.M.’s mobile phone containing images alleged to be of T.I.
[20] During his three years as investigating officer, Van Belleghem had several interactions with M.M. In June 2018, he conducted a face to face interview with him regarding the shooting offences. Moreover, he viewed M.M. in the court setting on different occasions as the matter made its way through the system. In October 2020, he was required to testify in a pre-trial motion where M.M. sat in the body of the courtroom, some 30-40 feet away. During Van Belleghem’s hour long testimony, M.M. sat in his full view.
[21] Van Belleghem also testified that he looked at images on M.M.’s mobile phone on a frequent basis, almost daily. On first receiving the data, Van Belleghem spent hours reviewing the images to identify clothing that M.M. might have been wearing, and analysing his physical appearance.
[22] In my view, it is clear that Van Belleghem would be sufficiently familiar with M.M. to be able to identify him on the Dundas Square video according to the Leaney principles. He was the officer in charge of a serious incident and spent a significant amount of time investigating the incident, going out of his way to familiarise himself with M.M.’s appearance. He met him face to face, and saw him on numerous occasions, including the occasion of his testimony. All of these things on their own might not have been sufficient to satisfy the Leaney test. However, taken together, I am persuaded that Van Belleghem is sufficiently familiar with M.M.’s appearance to provide his opinion.
Identification re: T.I.
[23] Van Belleghem became involved in the Dundas Square shooting after receiving a police bulletin from the Toronto Police Service. When he saw photos of the incident he immediately recognised M.M. and the person in the grey hoodie who fired the gun. He checked the images found on M.M.’s phone that he had previously analysed. After finding close up images of T.I., Van Belleghem checked the police Versadex system to ascertain possible links with M.M.
[24] Van Belleghem was called to testify at T.I.’s preliminary inquiry at the 311 Jarvis Street courthouse, spending two hours in the witness stand. The court room was smaller than normal and T.I. sat in front of him to his left, approximately 20 feet away. Van Belleghem also saw T.I. during courtroom recesses. He recalled that these totalled around half an hour.
[25] As with M.M., I find that Van Belleghem has sufficient familiarity with T.I. to identify him from images and the video.
[26] Prior to receiving the police bulletin, the officer had spent a significant amount of time evaluating the images found on M.M.’s mobile phone and viewed T.I.’s likeness during that time period. Although he was not the target of the investigation there was every reason for Van Belleghem to take notice of T.I. because he was looking for the physical characteristics of the shooter at White Oaks Court. I accept his evidence that the prior time spent looking at the photos on M.M.’s phone caused him to immediately react when he saw the shooter in the Dundas Square video. Having reviewed the images and videos sought to be tendered by the Crown, I find them to be of good quality and clear resolution.
[27] This case bears great similarity to the facts in R. v. Abdullahi, 2015 ONSC 2990, where Trafford J. found that the identifying witness, an investigating officer, viewed images and videos of an accused prior to testifying at the accused’s preliminary inquiry for 45-60 minutes. Justice Trafford found that the separate viewings complemented each other in providing sufficient familiarity for the officer to provide an identification that would assist a trier of fact.
[28] Van Belleghem’s familiarity places him in a better position than a jury and would assist them in the question which needs to be resolved. He is accordingly permitted to testify in accordance with Leaney. The ultimate reliability of Van Belleghem’s identification remains a matter for the trier of fact. Any purported deficiencies in the videos and photographs can be canvassed in cross-examination before a jury.
Detective Constable Bradley Reaume (T.I.)
[29] Detective Constable Bradley Reaume is part of the North Bay police department. On 20 July 2018, he was tasked with taking pictures of the accused in a North Bay courtroom. Reaume sat approximately 15 feet away from T.I. to his right and one bench behind. He testified that his focus was on the accused throughout and he was with him inside the courtroom for approximately 30-40 minutes. Reaume also observed the accused for about 10-15 minutes outside the courtroom.
[30] On 25 September 2018 he met with officers regarding the Dundas Square shooting. He was shown video stills and footage of the incident. He recognised the accused in the video. He also testified at the accused’s preliminary inquiry and was able to directly view the accused for approximately 46 minutes in the courtroom.
[31] Reaume had never met the accused prior to seeing him in North Bay and had no personal interaction with him.
[32] I am not satisfied that Reaume has sufficient familiarity with the accused to be in a better position than a trier of fact in identifying him from the images and video. Reaume had no acquaintance with the accused before being tasked to take a photo of him in the courthouse.
[33] Although he spent time with the accused in the North Bay courtroom, he did not sit directly in front of him but at an angle. I accept that he spent an additional hour testifying at the accused’s preliminary inquiry, however, this time period was comparatively short and was separated from the North Bay encounter by many months. Unlike Van Belleghem who pored over the images on M.M.’s phone continuously during the White Oaks Court investigation, Reaume had little interaction with matters concerning the accused until he testified at the preliminary inquiry.
[34] I conclude that he does not satisfy the Leaney test.
Special Constable Chad Hollingshead (T.I.)
[35] Special Constable Hollingshead interacted with the accused in North Bay on the same date that Reaume attended to take a courtroom picture. Hollingshead had a brief 10 minute conversation with the accused about his reluctance to sign probation papers, although Hollingshead testified that the accused ended up doing so.
[36] Hollingshead testified at the accused’s preliminary inquiry, remaining in the witness stand for approximately half an hour in direct view of the accused.
[37] My comments regarding Reaume apply with equal force to Hollingshead who had never met the accused prior to the North Bay courthouse meeting. He had little reason to remember the accused other than his reluctance to sign probation papers and disaffection with his lawyer. Hollingshead’s in court testimony, during which he saw the accused was months later and for a relatively short period of time.
[38] Although he might be able to recognise the accused, he does not have sufficient familiarity to be in a better position than a jury.
[39] For these reasons, I find he cannot identify the accused under the Leaney principles.
Police Constable Akasjot Bagri (M.H.)
[40] Police Constable Bagri is currently with the Ontario Provincial Police in Port Credit.
[41] He previously worked as a correctional officer and was stationed at the Roy McMurtry Youth Centre where he worked for three years. Whilst there, he interacted with some of the youth inmates, one of whom was M.H.
[42] Bagri testified that if placed on a unit, he would remain for the entire shift, which lasted 12 hours. There were approximately 10-12 youths in each unit and his assignments would endure for a week at a time. He recalled that it was normal to be placed on the same unit 15-20 times a year. During his tenure he became acquainted with M.H. and interacted with him frequently, between 15-20 times a shift.
[43] On 6 February 2020, Bagri, now an OPP officer, attended the scene of a motor vehicle collision on a highway. Five individuals abandoned their car and got into a taxi which was later stopped by police. Bagri dealt with the front seat passenger and walked him back to his cruiser. It was a dark night with no streetlights.
[44] Bagri testified that when they got to the cruiser his detainee indicated that he recognised Bagri “from the Roy”. In view of the lighting provided by the police cruiser, Bagri realised he had arrested M.H.
[45] Bagri drove M.H. to the police station and booked him into the detachment. He testified his involvement with M.H. that night lasted one and a half hours.
[46] I am satisfied that Bagri satisfies the Leaney criteria.
[47] He spent a significant period of time with M.H. when he was incarcerated at the Roy McMurtry Youth Centre and knew him by name. When he arrested him in February 2020, M.H. was familiar enough with Bagri to self-identify. Bagri also recognised him when he placed him in the cruiser, being able to see him with proper illumination. He also spent a significant period of time with him on that occasion after M.H. had been arrested.
[48] For these reasons, Bagri will be able to identify M.H. from the video and photographic images.
Police Constable Linda Stapleton (M.M. and M.H.)
[49] Officer Stapleton, an OPP officer, was also involved in the 6 February 2020 arrests. She arrived on scene and had conversations with two of the five suspects in the car, both female. She also spoke to both M.H. and M.M.
[50] Stapleton saw M.H. in the front seat of the cab with M.M. seated behind him. Stapleton testified that it was dark in the area but could not remember if there were streetlights. By her own account, Stapleton had very little contact with the male arrestees, approximately 5-7 minutes, but was involved in the booking in related to M.M.
[51] I find that on the evidence, Stapleton has insufficient familiarity with either M.H. or M.M. to identify them on video and will not be able to do so at trial.
S.A.Q. Akhtar J.
Released: 23 April 2021
COURT FILE NO.: YC-20-8000000-5-0000
YC-20-8000000-6-0000
DATE: 20210423
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
T.I.
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.