Case File No: 12-30000305
DATE: 20210118
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
NICHOLAS WALKER
Maureen Pecknold and Kathleen Farrell for the Crown
Nader Hasan and Monte MacGregor for Nicholas Walker
Ruling re Recognition Evidence of Clinton Hall
MacDonnell, J
[1] The defendant Nicholas Walker is before the court for the retrial of a charge of first degree murder. Pursuant to s. 473(1) of the Criminal Code, both the Attorney General and the defendant have consented to the trial proceeding without a jury.
[2] In the early hours of Sunday, March 28, 2011, Clifenton Ford was shot to death as he stood at the bar inside a crowded Scarborough restaurant. Notwithstanding the number of people who were present, the Crown will be unable to produce any witness who saw the actual shooting. The shooting was partially captured, however, by two of the restaurant’s security cameras and the recordings from those cameras were seized by the police. The Crown concedes that the imperfect quality of the recordings will make it impossible for the trier of fact to safely conclude, pursuant to the principles of R. v. Nikolovski, (1996), 1996 CanLII 158 (SCC), 111 C.C.C. (3d) 403 (S.C.C), that the defendant was the shooter.
[3] Clinton Hall was the owner of the restaurant and an acquaintance of the defendant. Mr. Hall had been present within the premises until just before the shooting occurred. The Crown seeks to call Mr. Hall to testify with respect to his recognition of the defendant at various points on the video footage of the events inside the restaurant before, at the time of and immediately after the shooting. The Crown proposes to argue, at the end of the day, that Mr. Hall’s recognition of the defendant is one of a number of circumstances that, taken together, establish that the defendant was the shooter.
[4] The defence opposes the admission of Mr. Hall’s recognition evidence. They submit that the test for the admission of evidence of this kind, derived from the judgment of the Supreme Court of Canada in R. v. Leaney and Rawlinson, [1989] 2 S.C.R. 39, has not been satisfied. Further, they argue, even if the Leaney test has been satisfied, the evidence should be excluded because its probative value is outweighed by its prejudicial effect.
[5] Prior to the defendant’s first trial, Mr. Hall’s evidence was ruled to be admissible. Its reliability was thoroughly explored in cross-examination at the trial. The Crown does not oppose the admissibility issue being relitigated for the purposes of this retrial. The parties both take the position that the issue can be determined on the basis of the transcript of the evidence given by Mr. Hall at the first trial.
[6] The test for the admission of lay opinion evidence of recognition – the so-called Leaney test – has two components. First, the witness must have the ability to recognize the defendant in a photograph or a video recording on the basis of prior acquaintance. Second, the witness must be in a better position than the trier of fact to make a comparison between the defendant and the person in the photograph or recording; that is, the witness must have “some advantage that can shed light on the evidence in question”. This articulation of the test has been repeatedly re-affirmed by the Ontario Court of Appeal: R. v. Behre, 2012 ONCA 716, at paragraphs 14 and 21; R. v. M.B., 2017 ONCA 653, at paragraphs 35-37; R. v. Hudson, 2020 ONCA 507, at paragraphs 28-33.
[7] There is no serious dispute with respect to whether Mr. Hall has the ability to recognize the defendant in a video recording on the basis of prior acquaintance. He testified that he has known both the defendant and his family “for a very long time”, since the defendant was a young man. In the early 2000s Mr. Hall worked for a number of years in the United States, but he was back and forth during that time period, and he returned to the Toronto area for good in 2009, about 2 years before the shooting. After his return, he would see the defendant around from time to time, including four or five times when the defendant came into Mr. Hall’s restaurant. He testified: “We like one another.” He said that they would greet each other with hugs and “pounds”. He believed that he saw the defendant in the restaurant on the night before the shooting, and, as I will come to in relation to the second branch of the test, he testified to observing and interacting with the defendant in the restaurant on the night of the shooting. I am satisfied that Mr. Hall has both a long acquaintance and a familiarity with the defendant that provides him with a basis for an opinion as to whether the defendant can be seen at various points in the video recordings.
[8] There is a more serious dispute with respect to the second component of the Leaney test. The defence submits that the Crown has not established that Mr. Hall is in a better position than the trier of fact to make a comparison between the defendant and the person whose image appears in the video recordings. To satisfy this component of the test, the defence argues, a witness must not only be familiar with the defendant based on prior acquaintance but must also, on the basis of that familiarity, be able to either (i) specifically identify idiosyncratic features of the individual that are visible in the video, or (ii) otherwise articulate a rational basis for knowing that the individual in the video is the defendant. The implication of the defence submission is that prior acquaintance and familiarity cannot by themselves put the witness in a better position than the trier of fact.
[9] No doubt, the ability to point to specific idiosyncratic features of the individual recognized or to otherwise articulate a basis for the recognition will enhance an argument that the witness is in a better position than the trier of fact. No doubt, as well, an inability to do those things will be relevant to the ultimate reliability of the witness’s opinion: see, e.g, M.B. at paragraph 47. The law in Ontario is clear, however, that neither of them is required to satisfy the Leaney test.
[10] In stating the better position component of the test as they do, the defence essentially re-frame the position taken by Harradence J.A. in Leaney in the Alberta Court of Appeal. Justice Harradence was in dissent, but the defence suggests that the Supreme Court implicitly endorsed his articulation of the test. However, the Ontario Court of Appeal has on more than one occasion specifically rejected that suggestion: Behre, at paragraph 22; M.B., at paragraphs 36-37. Further, the Ontario Court of Appeal has more than once (Behre, at paragraph 22; M.B., at paragraph 46) endorsed the following observation of Holmes J. in R. v. Panghali, 2010 BCSC 1710, at paragraph 42:
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]
[11] In my opinion, the evidence from the first trial establishes that Mr. Hall is in a better position than the court to make a comparison between the defendant and the person in the video footage who the Crown alleges is the defendant. He has an advantage not only because of his long-standing personal acquaintance with the defendant but also, importantly, because he was present, along with the defendant, at the scene of the shooting – the restaurant – in the hours preceding the shooting. He recalled observing the defendant standing at the bar. He recalled that at one point the defendant came into the kitchen to greet him (page 492). And he recalled that he served the defendant with a bottle of Hennessy cognac (pages 496, 634). In other words, his advantage over the court lies not only in his prior acquaintance with the defendant but also in his interactions with the defendant at the material time.
[12] Accordingly, I am satisfied that if Mr. Hall has an opinion with respect to whether the defendant is in the video recordings, his evidence meets the Leaney test for the admission of lay opinion evidence of recognition. That is, he is is sufficiently familiar with the defendant to have a basis for an opinion as to whether the defendant appears in the video footage, and he is in a better position than I am to form such an opinion.
[13] Satisfaction of the Leaney criteria is not necessarily determinative of whether lay evidence of recognition will be admitted. As with all evidence, it will be admitted only if it is relevant. “Evidence is relevant if, as a matter of logic and human experience, it renders the existence or absence of a material fact in issue more or less likely…”: R. v. Truscott, (2006), 2006 CanLII 60337 (ON CA), 213 C.C.C. (3d) 183, at paragraph 22 (Ont. C.A.). Notwithstanding relevance, evidence may nonetheless be excluded by other rules of law or policy, such as where, on balance, the probative value of the evidence is outweighed by its potential for prejudice.
[14] Although the defence argues that the Leaney test has not been satisfied, their real complaint is that Mr. Hall’s opinion is so ridden with uncertainty as to be worthless. In that respect they put forward three concerns: (i) Mr. Hall acknowledged that he was unsure about the identity of the shooter and that he has always been unsure; (ii) Mr. Hall was unable to point to a single identifying feature that enabled him to initially identify the defendant; (iii) the quality of the video makes it next to impossible for anyone to identify people in the video.
[15] I will deal briefly with each of those three concerns.
[16] First, while it is not explicitly stated, the proposition underlying the attack on the certainty of Mr. Hall’s recognition evidence seems to be that an opinion that falls short of a positive identification, and goes only so far as to say that the defendant looks like the perpetrator, is an irrelevant circumstance in an identification case. For a circumstance to have probative value in relation to an ultimate issue, however, it is not necessary that the circumstance prove the issue. It is true that mere resemblance between a defendant and a perpetrator, standing alone, does not prove that the defendant was the perpetrator: R. v. Boucher et al. (2000), 2000 CanLII 3270 (ON CA), 146 C.C.C. (3d) 52 (Ont. C.A.), at paragraph 19. It is well-established, however, that where there is other evidence of identification, resemblance can assist the trier of fact along the road toward a determination of identity. As Watt J.A. put it in R. v. Rybak (2008), 2008 ONCA 354, 233 C.C.C. (3d) 58, at paragraph 121 (Ont. C.A.), “the combined force of evidence of a resemblance and other inculpatory evidence may assist in completion of the prosecution’s proof.” See also R. v. John, 2010 ONSC 6085, at paragraph 15.
[17] Thus, if a trier of fact is able to say that a defendant looks like or resembles a person whose image appears on a video recording, that finding is capable of being a relevant piece of a larger circumstantial puzzle pointing to the identity of that person, notwithstanding that the trier of fact cannot say with certainty that the defendant is the person. If the trier of fact can make use of evidence of resemblance in that way, I see no reason why, in a case where the trier of fact cannot make the comparison on its own, it should be denied the assistance of a witness who, on the basis on familiarity with the defendant, can do so.
[18] The defence is correct in submitting that on many occasions Mr. Hall made it plain that he was not “sure” of his recognition of the defendant. The state of his opinion can be fairly illustrated with reference to what he said in relation to the shooter. The video footage shows the shooter to be firing a handgun at the victim, who has collapsed to the floor, and then to be calmly walking away. After looking at the video footage of those events, Mr. Hall stated, in examination in chief (at page 504): “To me it looks like Nick”. In cross-examination (at page 681), he stated: “When I say it look like Nick, but I’m not sure… It looks like him. I didn’t say it’s him. I say it look like him, but I’m not sure”. He was asked: “Effectively, it may be Nick, it may not be, you don’t know, right sir?” He responded: “Yeah.”
[19] I am prepared to assume, with respect to what Mr. Hall adds to the case for the Crown, that that is as good as it gets. To be clear, however, I am dealing on this application only with the admissibility of Mr. Hall’s opinion, not its ultimate reliability or weight. Undoubtedly, the reliability of Mr. Hall’s recognition evidence will be vigorously challenged at trial and I accept that the defence has a lot of material upon which to base that challenge. But it would go too far to say that Mr. Hall’s opinion, as set out above, lacks sufficient probative value to be admitted in evidence. Mr. Hall is unlike the usual kind of Leaney witness in that he was not only familiar with the defendant’s appearance based on their long-standing acquaintance, he was actually present at the location of the shooting, he made observations of the defendant at that location in the hours preceding the shooting, and he interacted directly with the defendant on at least two occasions in the course of those hours. I am satisfied that his opinion that the defendant looks like the shooter has sufficient probative value to justify admission.
[20] The probative value of Mr. Hall’s opinion must, of course, be balanced against its potential for prejudice. In that regard, the key concern is that recognition evidence carries with it the same kinds of dangers of a miscarriage of justice as does eyewitness identification evidence. Were this a jury case, a careful warning with respect to those dangers and the reasons for them would be required. The danger that the trier of fact will fail to take those dangers into account is attenuated in a judge-alone case. I am satisfied that the probative value of Mr. Hall’s evidence is not outweighed by the potential for prejudice.
[21] The second concern raised by the defence in relation to the probative value of Mr. Hall’s evidence is that he was unable to point to a single identifying feature that enabled him to recognize the defendant. However, as I indicated earlier, in a case where a witness has sufficient familiarity with the defendant based on prior acquaintance to enable the witness to be able to recognize him as the perpetrator, an inability to articulate the specific aspects of the perpetrator’s appearance that underlie the recognition is not a barrier to admissibility. Even with respect to the ultimate reliability of the opinion, the importance of unique identifiable features varies with how well the witness knows the person identified – “the better a person knows the accused the less important the articulation of identifiable features becomes”: Hudson, at paragraph 33; see also M.B., at paragraph 46. As I have said, Mr. Hall is a long-standing acquaintance of the defendant, and in addition he had the important advantage of being in the company of the defendant at the location of the shooting in the hours preceding the shooting.
[22] The third concern pointed to by the defence concerns the quality of the video footage. The Crown acknowledges, and I agree, that the clarity of the recordings is insufficient to permit me, as the trier of fact, to make a determination of whether the defendant is the person whose image is captured in the recordings at various times. In examining the video, however, Mr. Hall has the advantages that I have already described. While the deficiencies in the quality of the video are matters that impact the weight to be attached to Mr. Hall’s opinion, I do not accept that they give rise to a reason to exclude it.
[23] As I have said, the ultimate reliability of and the weight to be attached to Mr. Hall’s recognition evidence are not before me on this application and I have formed no opinion with respect to those questions. The issue I am required to decide is simply whether Mr. Hall’s recognition evidence can be received. For the foregoing reasons, I am satisfied that it can.
MacDonnell, J
Released: January 18, 2021