COURT FILE NO.: CR-22-511-00
DATE: 2023 10 31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
-and-
Tina Kim and David D’Iorio for the applicant Crown
Fiseha Girmay-Habtegabir
Craig Zeeh for the respondent, Girmay-Habtegabir
HEARD: June 19-20, 2023
LEANEY ADMISSIBILITY RULING
D.E. HARRIS J.
[1] Fiseha Girmay-Habtegabir (the “respondent”), Malik Essue, and Abdullah Kaddoura are together charged with the first-degree murder of Sangita Sharma, a 56-year-old pharmacist on August 13, 2020.
[2] The Crown applies to admit recognition evidence from the principal of the respondent’s high school, Paul Lamoureux, identifying the respondent in a video tendered by the prosecution. The premise of the application is that Mr. Lamoureux is in a particularly good position to identify the respondent because of his years of interaction with him.
[3] The video tendered by the prosecution is said to depict the respondent on August 10, 2020, three days before the murder, with his two co-accused at a business called K and A Automotive in London Ontario. Both of the co-accused can be seen on the video. One of the other men on the video removes a licence plate from a Ford Fusion car. This is the car that was allegedly used in the homicide just three days later. Mr. Essue had reported it stolen to the police just hours before: see my previous ruling R. v. Essue, 2023 ONSC 5482.
[4] At 5:43 p.m., a male wearing a black hoodie with a white design on the chest, black braided hair, a necklace, and a large ring on his right pinky finger get in the Ford Fusion and then at 5:55 p.m., drives away. This man is alleged to be the respondent. The Crown proposes to show this video to Mr. Lamoureux and have him identify the respondent in front of the jury. If the jury finds that it is the respondent, it serves to associate him with the car used in the homicide and his co-accused as well.
[5] This decision is governed principally by two Court of Appeal judgments considering recognition evidence: R. v. Berhe, 2012 ONCA 716, 113 O.R. (3d) 137 (C.A) and R. v. Hudson, 2020 ONCA 507, 391 C.C.C. (3d) 208. These cases build on the Supreme Court decision in R. v. Leaney, 1989 CanLII 28 (SCC), [1989] 2 S.C.R. 393, [1989] S.C.J. No. 90.
[6] Although the respondent concedes that Mr. Lamoureux was familiar over a lengthy period of time with the respondent, it is his position that the identification based on the video ought not to be admitted into evidence. The details from the respondent’s appearance which led to Mr. Lamoureux’s identification were insufficient and, in addition, the procedure employed by the police was very suggestive, destroying the value of the recognition evidence.
[7] In my view, these arguments cannot prevail. The evidence is admissible. These are my reasons for this conclusion.
THE NATURE OF RECOGNITION EVIDENCE
[8] A Leaney witness, because of their prior acquaintance with the person in question, is asked to identify them from a video or picture to be tendered in evidence at trial. Often termed “non-expert recognition evidence”, this type of opinion evidence is an amalgam of traditional eyewitness identification principles with the overlay of a concept intrinsic to opinion evidence. That is, the opinion must be necessary in the sense that the witness is better acquainted with the appearance of the accused than will be the jury by virtue of seeing the accused in court.
[9] The leading case of Hudson at para. 34 equates the principles underlying recognition evidence with those of eyewitness identification evidence:
… [because] recognition evidence is a form of identification evidence, the "same concerns apply and the same caution must be taken in considering its reliability as in dealing with any other identification evidence": M.B., at para. 34, quoting R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at para. 39; R. v. Chafe, 2019 ONCA 113, 145 O.R. (3d) 783, at paras. 29-32; R. v. McCracken, 2016 ONCA 228, 348 O.A.C. 267, at para. 25.
[10] Recognition evidence and eyewitness identification evidence derive from the same principles and must be cognizant of the same dangers. The application of these principles to the two types of evidence, however, may differ substantially.
[11] The key question governing the admission of both eyewitness identification and Leaney evidence is the same: the witnesses’ opportunity to observe the accused. The reliability of eyewitness and recognition identification evidence is only as good as the opportunity to observe.
[12] For an eyewitness, the opportunity to observe is based on the duration of the observation, the pertinent conditions under which the observation was made, the ability of the eyewitness to make an identification, amongst other similar factors. Opportunity to observe also lies at the foundation of the reliability of recognition evidence but it is not based on live observation of the individual. The legal foundation it stands on is prior familiarity with the accused. For recognition evidence “[t]he thrust … is aimed at determining the level of familiarity of the potential witness with the accused”: Hudson, at para. 31.
[13] “Familiarity” is a logical and well-accepted line of demarcation in eyewitness identification. Reference to prior acquaintance or knowledge of a person is prevalent throughout eyewitness identification cases. For example, in the old but influential case of R. v. Smierciak, 1946 CanLII 331 (ON CA), [1946] O.J. No. 290 (Ont. C.A.), the court said, “A witness called upon to identify another person may have been so well acquainted with him or her as to make the identification certain and safe.” In R. v. Spatola, 1970 CanLII 390 (ON CA), [1970] 3 O.R. 74 (Ont.C.A.) at p. 81 this was reiterated: “Of course, the extent of their previous acquaintanceship must have a very important bearing on the cogency of the identification evidence, as will the circumstances in which the alleged recognition occurred.” Also see R. v. M.B. 2017 ONCA 653 at para. 46.
[14] Evidence based purely on recognition of the accused like that tendered here is wholly dependant on familiarity. In the context of recognition evidence, unlike traditional eyewitness evidence, familiarity is more than a mere factor in assessing the strength of the evidence. It is the well-spring which confers value on the evidence. Without prior familiarity, the very premise of recognition evidence disappears. Although there are of course other factors to consider, familiarity is indispensable to admissibility.
[15] Some of the other aspects of recognition evidence which may be important, are the visual conditions evident from the photographic record from which the Leaney witness is asked to identify the individual. These will always be important, just as are the conditions of an eyewitness observation. In this sense, identification of a recognition witness from a dark photograph or video is similar to an eyewitness identification made in poor lighting conditions. In the case at hand, as both parties accept, the depiction of the respondent’s face in the visual record could have been clearer and better.
[16] The specificity of the identification and what features of the subject enable the witness to recognize the accused are also vital to assessing the reliability of the identification whether it be an eyewitness or a Leaney identification at issue: R. v. Browne and Angus, (1951) 1951 CanLII 393 (BC CA), 99 C.C.C. 141, [1951] B.C.J. No. 88 (B.C.C.A.) at paras. 15-16, Spatola. at p. 81; Smericak at p. 874; R. v. Sutton 1969 CanLII 497 (ON CA), 1969 CarswellOnt 30, [1970] 2 O.R. 358 (Ont. C.A..) at paras. 11-14 (Carswell); R. v. Izzard 1990 CanLII 11055 (ON CA), 1990 CarswellOnt 84, 54 C.C.C. (3d) 252 (Ont. C.A.) at para. 14 (Carswell). For an identification eyewitness, the inability to refer to identifying features can be fatal to admissibility: R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197; 31 O.R. (3d) 480 at para. 55.
[17] With respect to recognition evidence, the court in Berhe rejected the contention that a Leaney witness must be able to point to specific attributes or features of the accused in the photograph or record in order to cross the admissibility threshold: see para. 22. Despite this conclusion, in analyzing reliability and admissibility under Leaney, the ability of the witness to anchor the recognition in some feature apparent from the photographic record remains important: see M.B. at para. 47. This being said, there will be witnesses who have difficulty articulating what features underlie their identification but because of previous familiarity, their evidence will be admissible nonetheless: Behre at para. 22 quoting with approval from R. v. Panghali, [2010] B.C.J. No. 2729, 2010 BCSC 1710, at para. 42.
[18] Another key aspect of recognition evidence is that, like eyewitness identification evidence, it is deceptive. The outward appearance of reliability is often misleading. There is only a very weak correlation between a witness’ identification confidence and their accuracy: R. v. Hibbert, 2002 SCC 39 at paras. 52-53; M.B. at paras. 61-65. Judicial experience has shown that it is difficult to appreciate that the worth of the evidence depends on reliability not credibility: R. v. McCracken, 2016 ONCA 228 at para. 25; Olliffe at para. 37: Izzard at para. 11. The jury must be warned to be cautious in a direction carefully tailored to the specific weaknesses and dangers of the evidence tendered in each specific instance: R. v. Hay, 2013 SCC 61 at para. 40.
[19] The reliability of eyewitness identification evidence can be destroyed or diminished by suggestive police procedures. A single-show up, presenting just a single person or picture to a witness, and in-dock identification of the accused, are the two archetypic examples: Browne and Angus; R. v. Goldhar; R. v. Smokler (1941), 1941 CanLII 311 (ON CA), 76 C.C.C. 270, [1941] 2 D.L.R. 480 (Ont. C.A.); Izzard at para. 13; R. v. Reitsma 1998 CanLII 825 (SCC), [1998] 1 S.C.R. 769, adopting the dissent in the B.C.C.A. 1997 CanLII 3607 (BC CA), [1997] B.C.J. No. 2314 at paras. 56-59; R. v. Miaponoose, 1996 CanLII 1268 (ON CA), 1996 CarswellOnt 3386, 110 C.C.C. (3d) 445 (Ont.C.A.) at paras. 28-37; R. v. Holmes, (2002) 2002 CanLII 45114 (ON CA), 169 C.C.C. (3d) 344 (Ont.C.A.) at para. 40. In my view, as explained below, suggestiveness will generally not have the same negative impact in a recognition case than it will in the circumstances of an eyewitness identification.
[20] Lastly, Leaney evidence only becomes admissible if “a trier of fact, with access to only the accused, the video, and photographic evidence during trial, will not be able to or [will be] unlikely to ascertain for him or herself": Hudson, para. 31; Behre at para. 14. This is sometimes referred to as the “prior acquaintance\better position test”. It is related to one of the four basic requirements of expert opinion evidence: the necessity that the evidence provide the trier of fact with an opinion outside of their knowledge and experience: R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 at paras. 21-26; R. v. D.D., 2000 SCC 43, at paras. 46-57. The Leaney witness, in giving non-expert opinion evidence, by virtue of their experience and familiarity with the accused, must be capable of providing an opinion that the jury would have had difficulty in coming to on their own.
APPLICATION TO THE PRESENT CASE
[21] The task of a judge on a recognition voir dire is to determine whether the threshold for admission of the evidence has been met. As summarized in Hudson at para. 30,
The trial judge must determine whether: 1) the witness is sufficiently familiar with the accused to have "some basis" for their identification opinion; and 2) the witness, as a result of their prior acquaintance with the accused, must be in a better position than the trier of fact to identify the perpetrator, in the sense that they have "some advantage that can shed light on the evidence in question": [Berhe] at paras. 14, 21.
[22] It is noteworthy that this test is predicated only on the level of familiarity and whether this puts the recognition witness in a “better position” than the jury. Other factors detracting from admissibility are not mentioned. There are few if any cases in which other factors have been instrumental in a finding of inadmissibility. The authorities that have found recognition evidence inadmissible have generally done so on the ground that the level of familiarity with the accused was insufficient: Hudson, at para. 40; R. v. Oglivie, 2023 ONSC 4039 at para. 59.
[23] Nonetheless, other factors including the failure to mention the features upon which the recognition is based and suggestive police identification procedures may detract and in some cases, unusual as they might be, render recognition evidence inadmissible. In addition, the risk of the jury overvaluing evidence from a recognition witness may be a factor gravitating against admissibility just as it can be with expert opinion evidence: see R. v. Abbey, 2009 ONCA 624 at paras. 90-91, leave refused [2010] 2 S.C.R. v (note).
[24] In this case, as the summary below shows, the high degree of familiarity between Mr. Lamoureux and the respondent is clearly sufficient to find the tendered identification admissible. The detracting factors are not of significant weight countering the evidence of familiarity.
i. Prior Familiarity with the Respondent
[25] Turning to this case, the respondent does not seriously challenge the evidence of familiarity. Mr. Lamoureux had extensive interaction with the respondent over several years during a time not long before the homicide.
[26] This is a summary of the evidence on the point. I note in passing that Mr. Lamoureux’s discussions with the police are admissible at this trial in order to measure the reliability of his recognition of the respondent in the video: R. v. Tat, (1997) 1997 CanLII 2234 (ON CA), 117 C.C.C. (3d) 481 (Ont. C.A.) at paras. 38-39.
[27] Two officers from the Peel Regional Police attended Catholic Central High School in London, Ontario on October 15, 2020, two months after the murder, to speak to the principal Paul Lamoureux about the respondent. Upon being asked about the respondent, Mr. Lamoureux provided a photograph and address from his student file. Two weeks later, on October 27, 2020, two other officers re-attended and interviewed Mr. Lamoureux more extensively. Some of the interview was recorded but the recording was turned off several times. Mr. Lamoureux indicated that he was familiar with the respondent as he attended high school there for four years from grade 9 to grade 12, ending in the spring of 2020. Mr. Lamoureux saw the respondent quite regularly over that period of time and was familiar with where he lived, his friends and his family, including his sister and mother. He was familiar with the respondent’s hairstyle.
[28] Mr. Lamoureux was shown still photos of a man driving a Ford Fusion taken from the surveillance video at K in A Automotive on August 10, 2020. Mr. Lamoureux said that the still pictures taken from the video looked identical to the respondent and that he recognized the hairstyle. He also said that the respondent always tended to look down. The profile of the photo matched him perfectly.
[29] Mr. Lamoureux was shown a binder with photographs in it. He identified a picture of the respondent. He explained that he recognized the tilt of the head and the jaw line. Mr. Lamoureux explained that when the police showed him the images he had already been asked by the police about the respondent. He knew that when the police showed him photographs there would be one of the respondent.
[30] The officers returned the next day, October 28, 2020, and attempted to show Mr. Lamoureux the K and A Automotive video itself but this was hampered by technical problems. However, Mr. Lamoureux again identified the respondent and said that he recognized him based on his hairstyle, his facial features including his jaw and the mannerism of looking down frequently. He also recalled that the respondent would wear a large chain similar to the one seen in the video.
[31] At the preliminary inquiry, Mr. Lamoureux evidence went into considerably more detail. He testified that the respondent attended his school from September 2016 to June 2020 and he got to know him very well. This was largely due to significant disciplinary issues that arose. I would note parenthetically that counsel ought to attempt to reduce the bad character content of this evidence at trial if at all possible although I recognize the difficulty in doing so.
[32] Students at his school are required to wear a uniform and the respondent quite regularly did not do so. He would be sent home if he was not wearing the uniform and Mr. Lamoureux would speak to his older sister, mother and father about it. To address the uniform issues, the respondent would attend at Mr. Lamoureux’s office and sit around a round table speaking face to face with him for a minimum of 15 minutes. The respondent would speak very little during these sessions and always had his head down.
[33] There were also incidents involving the use of marijuana and vaping in a school washroom. This happened about a half a dozen times in grades 10 and 11. On at least two occasions Mr. Lamoureux’s family was contacted and there was a suspension levied. After returning to school after the suspension Mr. Lamoureux testified that the respondent’s head would be completely shaved.
[34] Mr. Lamoureux also testified to an incident in which the respondent had an altercation in a classroom with another student. The respondent was called to his office for a meeting which lasted at least 15 minutes. There were other interactions as well. Mr. Lamoureux estimated that he had face to face interactions with the respondent a minimum of two to three times a month during the grades of 10 and 11. In grade 12 the pandemic hit in March of 2020 and the school went online. Mr. Lamoureux believed that his last interaction with the respondent was in October of 2019.
[35] With respect to the respondent’s physical appearance Mr. Lamoureux recalled two different hairstyles over the years. He would wear his hair all out or braided into individual braids that would hang down to the forehead. In the fall of 2019 his hair was all out in an Afro.
[36] In conclusion, the lengthy, extensive and relatively close in time familiarity with the respondent builds a strong basis for admission of the recognition evidence of Paul Lamoureux. He is very familiar with the respondent’s appearance. Based on the pool of evidence on the issue, the respondent does not seriously challenge the conclusion of familiarity.
[37] As the authorities make clear, familiarity dominates the admissibility inquiry into Leaney evidence. In this case, the long-term familiarity with the respondent and his appearance leads to a formidable application for admission. There were two main counterweights argued by the respondent.
ii. THE IDENTIFICATION OF THE RESPONDENT IN THE VIDEO
[38] The visual depiction of the person alleged to be the respondent in the video has shortcomings. The main problem is that the photographic quality is mediocre. In addition, the respondent’s depiction is most often in profile, although the video does show the full face of the person alleged to be the respondent outside the passenger door of the Fusion.
[39] Mr. Lamoureux testified that with respect to the photographs that he was shown on October 27, 2020 he immediately recognized the person as the respondent. After the video was played for him in court, he said he recognized him because,
Getting into the car, just the, the, kind of the way he, kind of his posturing, how he always had his head kind of tilted down, his hair, that he had braids that he had done, just the outline of his face was very recognizable.
[40] Lamoureux recalled that at school the respondent typically wore a red hoodie with white writing on and sometimes a black hoodie with white writing on it. The writing was in a wave motion. These hoodies were worn in grades 10 and 11. The person alleged to be the respondent is wearing such a hoodie in the video. There was also a necklace that he saw on the video which was similar to the one he had observed the respondent wear at school. Mr. Lamoureux acknowledged that he could not see the individual's whole body on the video but from the height of the vehicle he estimated the male’s height was about six foot one and that he was slight or slender, both features matching the respondent. Although the full face of the individual was not visible, given the number of interactions he had with the respondent, he believed that it was him in the video.
[41] By virtue of the foundational importance of familiarity to the strength of recognition evidence, it has been accepted that the “better a person knows the accused, the less important the articulation of identifiable features becomes.” Hudson at para. 33 citing M.B. at para. 46. Familiarity may overwhelm flaws in the identification or, indeed, in the identification process used by the police.
[42] In this case, recognition was hampered by the nature and quality of the video depiction of the person alleged to be the respondent. However, Mr. Lamoureux was able to specifically articulate why it was that he recognized the respondent as the person in the video. The respondent argues that the identification rested almost solely on how his jawline looked. I do not agree. Besides the jaw, Mr. Lamoureux mentioned his hair, the necklace he wore, the hoodie, the mannerism of looking down and his body movements, among other things. Considering the close familiarity with the respondent, this was certainly sufficient to anchor the recognition evidence. It puts the jury in an advantageous position to assess whether they should accept Mr. Lamoureux’s evidence identifying the respondent.
iii. THE SUGGESTIVENESS AND OTHER FLAWS IN THE PROCEDURE
[43] This is the second area argued by the respondent. It was said that there was no description requested by the police before they showed a photograph of the respondent to the witness. After showing him a photograph of the respondent, only then was the video played for him. Overall, the procedure employed was suggestive. Furthermore, the recording of the interaction between Mr. Lamoureux and the police was interrupted and a full record is lacking.
[44] I agree. The police made little effort to lay a foundation for the recognition evidence by first eliciting descriptions of the respondent before the pictures and video were shown. The procedure employed by the police suggested that the person sought to be identified in the video was the respondent. The witness agreed with counsel at the preliminary hearing that he knew that the pictures he would be shown would be those of the respondent.
[45] Every attempt should be made to lay a foundation for recognition before the last step of showing the critical pictures or videos to a witness. This is the best practice. There is no reason not to anchor the recognition evidence with prior full and detailed descriptions before a picture is shown or other suggestive methods are undertaken. This would to the extent possible ensure that the witness is making an independent assessment based on his or her true recognition as opposed to simply parroting what the police have suggested.
[46] It must be recognized, however, that some suggestiveness is almost inevitable with Leaney evidence. The witness’ degree of familiarity with the suspect has to be explored and so his or her name will likely come up. While the inherent suggestiveness of the process should be minimized, some suggestiveness, unlike with eyewitness evidence, is often unavoidable. Having said that, I am not suggesting that this evidence should be given a discounted ticket to admission because some degree of suggestiveness is inevitable. Rather, this reality is necessary context in evaluating police conduct and in attempting to improve procedures in the future.
[47] The main argument of the defence on this application was that the procedural improprieties in the identification procedure deprive the evidence of significant probative value. The prejudicial effect of this evidence outweighs its probative value. I cannot agree. Suggestiveness has a much less deleterious impact on recognition identification than it does on eyewitness identification. Familiarity, lying at the foundation of the strength of the evidence, makes recognition evidence much more resilient against procedural flaws in identification than is traditional eyewitness evidence. As opposed to being rooted in a history with the accused, the traditional fleeting glance observation of the eyewitness is fragile and open to after-the fact suggestion. History shows that the evanescence of this type of memory makes it delicate and susceptible to distortion or destruction if not carefully handled by the police.
[48] Familiarity evidence will generally stand on much firmer ground. It is relatively easy to illustrate the different weight to be accorded recognition evidence where there is a good foundation in prior acquaintance. For example, if a close family member or spouse is relied upon to supply recognition evidence, even very suggestive identification methods may do little to defeat the value of the identification made. A finder of fact may not be overly concerned about suggestive or procedurally flawed procedures if a very close familiarity is firmly established. This illustrates the reality that the greater the familiarity, the less important are suggestive techniques used by the police. In general, familiarity serves as an effective antidote against the flaws in recognition identification evidence.
[49] As the respondent has essentially conceded, the level of familiarity the Leaney witness Lamoureux had with the respondent was extensive. As a result, the procedural frailties are relegated to secondary importance. Ultimately, suggestiveness in the procedures employed does not take away substantially from admissibility of the recognition evidence. In context, the probative value of the evidence is high; the prejudicial effect is relatively low. With the assistance of the trial judge, the jury is fully capable of weighing the flaws of the methods used by the police and determining for themselves the impact on the worth of the recognition evidence.
iv. CONCLUSION
[50] Mr. Lamoureux’s recognition evidence is admissible. After hearing counsel’s views, the trial judge will have to provide an instruction to the jury in his charge including cautioning them about the potential dangers of relying on this evidence. There may also be a need to address whether the jury can view the respondent’s appearance in court and use these observations to assist in identifying the person said to be the respondent in the K and A video: see Leaney and Nikolovski.
D.E. HARRIS J.
Released: January 30, 2024
COURT FILE NO.: CR-22-511-00
DATE: 2023 10 31
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
Fiseha Girmay-Habtegabir
LEANEY RULING
D.E. HARRIS J.
Released: January 30, 2024