COURT FILE NO.: CR-21-30000-302
DATE: 20220608
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
KEDAR ABDL GUERRA, ETHAN LOU LEE and ATNEIL FITZROY NELSON
Counsel: Jason Gorda and Caolan Moore, for the Crown C. Stephen White and Kristianne C. Anor, for Kedar Abdl Guerra Christian Angelini, for Ethan Lou Lee Philip Klumak and Michael Moeser, for Atneil Fitzroy Nelson
HEARD: May 27 & 30, 2022
REASONS FOR RULING
M. Dambrot J.:
[1] This ruling concerns the admissibility of a video chronology tendered by the Crown.
The Charge
[2] Kedar Guerra, Ethan Lee and Atneil Nelson are being tried by me, with a jury, on an indictment alleging that on December 31, 2019, at the City of Toronto, they committed the first degree murder of Clinton Williams. Clinton Williams was shot in the chest in the underground parking lot of the apartment building where he resided. He was shot by a man who emerged from a motor vehicle that followed the deceased down the parking lot’s entrance ramp.
The Crown’s Position
[3] The Crown says that Lee was the man who emerged from the motor vehicle and shot and killed Williams; that Nelson was the driver of the vehicle; and that Guerra, who was a second passenger in the vehicle, arranged the shooting.
[4] A significant portion of the evidence relied on by the Crown to prove its case consists of phone records and surveillance video. The story that the Crown says is told by the evidence, and in particular by the surveillance video, in brief compass, is as follows.
[5] During the morning of December 31, 2019, Guerra and Williams communicated with each other on their cell phones. Guerra called Nelson before and after his calls to Williams. Nelson was in touch with Lee during the afternoon of December 31, 2019.
[6] Later in the afternoon of December 31, 2019, Nelson picked Lee up in a silver Mercedes Benz wagon (“Benz”) that he had borrowed from his girlfriend. Nelson and Lee then proceeded to the Travelodge Hotel in Scarborough in the Benz. The hotel is a short distance from the deceased’s apartment. Nelson and Lee were greeted by Guerra in the hotel parking lot. At 4:57 p.m., the three men entered a hotel room in the Travelodge along with Guerra’s fiancée.
[7] At 5:01 p.m., while he was in the hotel room, Guerra called the deceased. The call lasted 91 seconds.
[8] Nelson, Lee and Guerra left the hotel room at 5:24 p.m., got into the Benz and departed from the hotel.
[9] At 5:42 p.m., Williams was in his apartment and the Benz was on the street outside Williams’ apartment building. The Benz was parked on the street and remained in one place for approximately 20 minutes. Guerra’s phone records place him in the area of William’s apartment building at the time and show that he exchanged phone calls with Williams at 5:31, 5:41, 5:53, and 5:59 p.m. There is evidence that these calls included comments about Williams finding a parking spot for the person he was speaking to. After the last of the phone calls, Williams left his apartment.
[10] At 6:01 p.m., Williams exited his building, walked over to the Benz (which was still parked on the street), appeared to speak to someone through the driver’s side window, and then walked towards the underground parking garage of his building. The Benz followed him. Williams opened the door of the underground parking garage, obviously intending to permit the Benz to enter.
[11] As the garage door opened, the Benz pulled onto the garage entrance ramp and then stopped halfway down. A person said by the Crown to match Lee’s description, wearing clothing that the Crown says matched the appearance of the clothing Lee was wearing at the Travelodge 45 minutes earlier, exited the Benz from the rear driver’s side door. A gun was visible in his hand approximately 3 seconds after he got out of the vehicle. He fired four shots in the direction of Williams at 6:03 p.m., one of which penetrated Williams’ back and entered his chest. The shooter then got back into the Benz. The shooter was outside the vehicle for less than 20 seconds.
[12] Williams, despite being shot through the chest, made his way back to his apartment. His roommate called 911 and police officers arrived almost immediately. Williams was taken by ambulance to the hospital, where he died within an hour of being shot. Before he was removed from the apartment, he managed to convey to the police that he had been shot in the garage. The police located four firearm cartridges in the garage and recovered surveillance video from the apartment building that depicted Williams entering the garage; a vehicle stopping on the ramp; and a man emerging from the vehicle, entering the garage, shooting in the direction of Williams, and fleeing.
[13] After the shooting, the Benz drove away at a relatively high rate of speed. The Crown says that the Benz can be seen in the parking lot of the Scarborough Town Centre in surveillance video at 6:13 p.m. and Guerra and Nelson can be seen inside the Centre in surveillance video at 6:18 p.m. Nelson and Lee partied together at a club later that evening (the evening of New Year’s Eve).
The Video Chronology
[14] Video surveillance cameras are ubiquitous in our society. Reviewing video recordings has become a staple of the investigation of criminal offences. As a result, video recordings are often at the heart of the Crown’s evidence in criminal trials. As useful as this evidence is, it is often difficult to present it to jurors in a manner that permits them to fairly assess it. The reason for this is not hard to understand.
[15] While of course every case is different, this case is typical. The police investigation began with the recovery of the video of the shooting. But it is impossible to identify the shooter or the motor vehicle from that video. The police began searching for video that would trace the movements of the vehicle both before and after the shooting. As a result, the police recovered a large mass of video. After a painstaking review of the video, the police were successful in extracting a small portion of the video that appeared relevant and identifying what they believe to be the motor vehicle, its occupants, and their movements from December 20, 2019, to January 1, 2020. As I indicated, much of my description of the Crown’s case is based on this surveillance video.
[16] The challenge for the Crown, then, is to present this evidence in a manner that permits the jury to understand and assess the Crown’s case. We are long past the day when anyone would imagine that the video should simply be presented in bulk and left to the jury to pore through and assess with only the aid of the closing addresses of counsel. Crown counsel are entitled to separate the fragments of the video that they consider relevant and present them to the jury in some coherent fashion, typically serially or in a compilation video. The defence, of course, is free to compile and present what it considers relevant as well.
[17] I had occasion to address this issue in R. v. Chaudhry, 2021 ONSC 6589, where I stated, at para. 16:
It is also commonplace to provide the trier of fact with a compilation of pertinent extracts from a series of videos, often placing different images taken with different cameras in chronological order. Again, if not done in a misleading manner, this assists the trier of fact to understand the events being displayed. Doing this is no different than adducing schedules or summaries to effectively synthesize cumbersome and confusing evidence. This has long been an accepted practice in cases where a large body of documents have been led in evidence: R. v. Scheel (1978), 1978 CanLII 2414 (ON CA), 42 C.C.C. (2d) 31 (Ont. C.A.). This principle has been applied to composite videos in cases such as R. v. Zoraik, 2012 BCCA 283, at para. 22, and R. v. Barreira, 2017 ONSC 1665.
[18] However, even compiling and presenting the fragments of the video the Crown considers relevant has its challenges. It is very difficult to present fragments of video evidence taken at various locations and from different vantage points in a way that permits jurors to understand how the pieces fit together and how to fulfil their responsibility to reach a true verdict according to the evidence. As a result, trial judges have permitted the Crown to enhance the video presentation in a variety of ways to ensure that it is comprehensible.
[19] One frequently employed method of doing this is to have police officers who have meticulously reviewed the video evidence create a video chronology that: (1) stitches together in a document still shots captured from the fragments of video; (2) adds identifying information to the still shots relating to time, place and camera; (3) includes circles and arrows, where helpful, to draw the viewer’s attention to particular features in the still shot; and (4) summarizes what is seen in the individual still shots by means of short descriptions composed in as neutral a way as possible to identify what the compiler of the video says is depicted and, in some instances, to connect the shot to other shots.
[20] That is what the Crown has done in the video chronology under consideration here. To vastly oversimplify, the compilation covers a person whom the Crown says is Guerra arriving at a Travelodge hotel on December 30, 2019; two men that the Crown says are Lee and Nelson meeting Guerra at the hotel on December 31; all three men going to Guerra’s hotel room; the three men leaving the room; three men that the Crown says are the same three men getting into a vehicle; the vehicle proceeding to Williams’ apartment; the shooting; and the departure of the car.
[21] The three key purposes of the video compilation are: (1) to make it possible for the jurors to assess whether they are satisfied that the vehicle that left the Travelodge is the one that was present at the shooting; (2) to make it possible for the jurors to assess whether the three accused were in the vehicle at the time of the shooting; and (3) to make it possible for the jurors to assess whether Mr. Lee was the shooter.
The Defence Argument
[22] While I heard a variety of arguments from counsel for the three accused, the defence position comes down to this. The video is the evidence. The descriptions by a witness of what can be seen in the video is not. The evidence of the compiler of the video, whether given orally or in the form of summaries affixed to the still shots, as to where to look and what is seen in the still shots is inadmissible, and unfair. It conveys the Crown’s theory of the case to the jury, through the guise of witness evidence. The circles and arrows are also ways of conveying to the jury what the witness considers significant, a matter, once again, for the jury. Where the descriptions are indisputable, they are simply unnecessary.
Analysis
[23] In my view, the defence argument proceeds from a false premise: that since the video is the “original” evidence in this case, summaries of what is seen in the individual still shots and markings directing attention to persons or areas in the shots, are inadmissible, even when created in as neutral a way as possible to assist the jury in analyzing what they are seeing. Counsel for the accused say that it must be left solely to Crown counsel to undertake this task in their closing address.
[24] This notion that only original evidence is admissible is an evocation of the traditional best evidence rule. However, the traditional common law best evidence rule is no longer applied strictly. The rule is best considered today as a general guide for choosing the appropriate method of proof: R. v. Shayesteh (1996), 1996 CanLII 882 (ON CA), 31 O.R. (3d) 161 (C.A.). Moreover, as noted by Martin J.A. in R. v. Scheel (1978), 42 C.C.C. (3d) 31 (Ont. C.A.), at para. 18, the introduction of summaries does not offend against the rule that requires the production of original documents where the primary source of the summaries is in evidence.
[25] It has become commonplace, certainly since Scheel, to permit a litigant to place in evidence an aid to comprehension of original evidence. For example, litigants regularly, and usually without objection, place in evidence the transcript of a recorded statement or conversation prepared by an individual who has listened carefully to the recording. In such a case, the recorded conversation is the evidence, but the jury is permitted to use the transcript as an aide to comprehension.
[26] Similarly, it has become widely accepted in recent decades that charts, schedules and summaries can be adduced in evidence to assist the trier of fact with organizing, clarifying, understanding and evaluating evidence that has already been led. A demonstrative aid that organizes or distils a large amount of information previously admitted in a trial can serve multiple purposes, including: (1) promoting trial efficiency; (2) organizing information already received in the trial; (3) decreasing the potential for confusion among the triers of fact; (4) streamlining the task of the triers of fact; and (5) assisting the jury to understand the evidence reasonably, intelligently and expeditiously. The usefulness of the summary will always depend on whether the trier of fact accepts the proof of the facts upon which the summary rests.
[27] If authority is needed for this practice as I have described it, I can do no better than referring to the decision of Fairburn J., as she then was, in R. v. Kanagasivam, 2016 ONSC 2250, 29 C.R. (7th) 201, at paras. 36-47. I note, in particular, that she stated, at para. 42, that in cases where a large body of documents have been filed, a party may wish to have them summarized so that their salient and germane points are teased out.
[28] I see no difference in principle between document summaries and the video summaries here. A document summary is prepared by a witness who has reviewed the underlying documents and summarizes what the witness thinks the underlying documents are and what they convey. The same applies to fragments of videos extracted from a mass of video. It seems to me to be perfectly proper to permit a litigant to create a compilation of fragments of videos and affix brief summaries to them to assist the jury in following the litigant’s case.
[29] At the same time, I am alive to the concern raised by the accused that the jury should not retire to deliberate with documents crafted to, in effect, argue the Crown’s case. I observe, however, that while making evidence comprehensible to the jury in the manner proposed here certainly assists the Crown, aids such as these are not meant to be, and should not be permitted to be, tools for advocacy, or tools to paint a one-sided picture of one party’s position. Rather, they are meant to facilitate juror comprehension of the evidence by clarifying and distilling them into a manageable and understandable format. In the words of Fairburn J. in Kanagasivam, at para. 48:
Assistance should be given to a jury where review of the evidence by them would be cumbersome, unduly time consuming, and confusing. Jurors are selected to assess the facts of a case, not so that they can be tested on their abilities to locate needles in haystacks. Any tools that they can be provided to perform their role as fact finders, fairly, with an even hand, and in accordance with the rules of evidence, should be accommodated.
[30] I would add that jurors should also not be tested on their ability to recall the locations of the many needles in the many haystacks in dozens of still shots extracted from a large volume of video that counsel draw to their attention in their closing addresses. As Fairburn J. put it at para. 66 of Kanagasivam, this case is not about testing this jury, it is about this jury testing the evidence. Moreover, to me, it is fairer to the accused for the summaries to be admitted through a witness, rather than appearing to have the personal endorsement of Crown counsel in their closing. Once again, I refer to Kanagasivam, at para. 71, where Fairburn J. noted that by having the summaries introduced by the creator as a witness, they can be challenged, and their limitations exposed through cross-examination, making for better jury comprehension.
[31] Finally, in my view, although advocacy must be minimized, charts and summaries of evidence already admitted in evidence can be a little more one-sided in their presentation of relevant evidence than summaries that are admitted without production of the originals. As Martin J.A. noted in Scheel, summaries without production of the originals are permitted where, for example, it is, practically speaking, out of the question to require production of a very large mass of documents.
[32] It is undoubtedly true that, in a situation like this one, even the selection of the video fragments that the Crown chooses to include in a compilation inevitably, to a certain degree, paints the picture the Crown favours, and might be seen as a modest form of advocacy. The same is true of the selection of still shots in a chronology. For example, the selection of one image of vehicles on a highway that the Crown says includes a vehicle of interest might omit other images that include similar vehicles. The descriptions do the same. However, to me, this is better described as illumination, not advocacy. The line is a fine one. To the limited extent that this kind of evidence can be seen as advocacy, it should be kept within reasonable bounds. This can be accomplished in a number of ways, as I will explain.
[33] First, of course, the defence is free to cross-examine the compiler of the chronology about alternative interpretations of the still shots, including by confronting them with other shots or other selections of video. Second, the defence is free to adduce in evidence an alternative selection of shots, to produce alternative accompanying narratives, or even to produce the same shots with different, fair annotations. Third, the Crown can be directed, as I have done here, to ensure that the summaries are as neutral as possible. Indeed, Crown counsel undertook an effort to ensure that these summaries were neutral even before I expressed this concern in discussion with counsel.
[34] In particular, I directed that the document may suggest that a person or vehicle seen in one still shot is the same person or vehicle seen in another, but it may not include the opinion of the maker of the document as to who any such person is, or what vehicle it is, or state the author’s opinion of the destination of a person or vehicle. It may also not use value-laden words such as “suspect” or “victim”. Terms such as “person 1”, “vehicle 1”, “black vehicle”, “person of interest” and “deceased” are preferable.
[35] In this case, I have scrutinized a draft of the proposed Video Chronology. It consists of 193 still shots extracted from the video collected by the police. The jury will be able to play the video from which the shots are extracted in the jury room, which will make it easy for them to view the shots in context. In my view, the short descriptions affixed to the still shots are each composed of a few neutral words and are fair and, in most cases, obvious descriptions of what is depicted in the still shots themselves, or in the surrounding video. The descriptions do not offer advice as to the inferences that the Crown seeks to have the jury draw from what is depicted and described.
[36] In my view, this document is little different in principle from what Fairburn J. admitted in Kanagasivam: a PowerPoint presentation used to plot cell tower and phone information, including phone numbers and subscriber information, derived from a variety of sources, linked to locations of interest on maps at the times and places where offences were alleged to have been committed.
[37] As for the markings – the circles and arrows that have been placed on a few of the still shots – in my view they are entirely fair and neutral, generally serving simply to focus attention on a feature in the shot. For example, in one shot, an arrow points to a vehicle’s apparently open sunroof – a feature that can be compared to other shots of a similar vehicle. In another case, a circle has been placed around a small area to focus attention on a particular vehicle on Progress Avenue. In still another, an arrow points to a spot on a man’s shoe to focus attention on its design features. I see no prejudice flowing from these marking, particularly because the jury will be instructed that the significance of these items is entirely for them to decide.
[38] And finally, the jury will be instructed in a manner that ensures that it does not misuse the document. While it is premature to craft my instruction now, it will include a direction that the video, and not the words of the creator of the document, are the evidence; that the jurors are in no way bound by what the creator of the document purports to see in the still shots, or what he or she appears to think is important; that they are not bound by the creator’s representation, through the selection of still shots, of what is important in the video; and that they are free to examine and take into consideration any part of the video that they think is important and ignore anything that the creator thinks is important but that they do not.
[39] In the end, I conclude that the video chronology, accompanied by appropriate instruction, will be of assistance to the jury in assessing the evidence in this case in a manner that is both efficient and fair to all parties. The probative value of the video chronology presented in this way outstrips any residual prejudicial effect it may have.
Disposition
[40] The video chronology may be adduced in evidence subject to the limitations I have described.
M. Dambrot J.
Released: June 8, 2022
COURT FILE NO.: CR-21-30000-302 DATE: 20220608
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
KEDAR ABDL GUERRA, ETHAN LOU LEE and ATNEIL FITZROY NELSON
REASONS FOR RULING
DAMBROT J.
RELEASED: June 08, 2022