Court File and Parties
COURT FILE NO.: YC-23-3/006-0000 DATE: 20241018
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING – and – I.T. Defendant/Respondent
Counsel: Bryan Guertin, Rhianna Woodward, for the Crown Monte McGregor, Amanda Warth, for the Defendant/Respondent
HEARD: September 23 to October 16, 2024
Justice S. Nakatsuru
[1] I.T. is a young person charged with murder. I.T. is alleged to have shot and killed Mr. Christopher Jung while Mr. Jung was driving his taxi on the evening of October 24, 2021. Identity will be a central issue in this trial. Proof of identity is largely circumstantial.
[2] Before the start of his jury trial, two pretrial evidentiary issues must be decided:
- The admissibility of recognition opinion testimony; and
- The admissibility of prior discreditable conduct of the accused.
[3] These reasons further explain the ruling I made.
A. The Recognition Evidence
[4] CCTV video surveillance evidence forms a large part of the prosecution case. In brief, there is video evidence obtained by surveillance cameras in various locations on various dates, including the date of Mr. Jung’s shooting, that the prosecution alleges shows I.T. No video captures the shooting itself.
[5] The Crown seeks to call two witnesses, Jason Roe and Sean Tomlinson, to identify a man in these videos as I.T. Both men used to work at the Roy McMurtry Youth Center (RMYC), a youth detention center for youths on remand or serving a youth sentence. Both knew I.T. through their employment.
1. The Law on Admissibility
[6] The Crown may seek to prove that the accused is the perpetrator of an offence by adducing evidence from a witness who is sufficiently familiar with the accused to recognize them in a material video or photograph in order to assist the trier of fact in determining whether the accused is the person seen: R. v. Leaney, [1989] 2 S.C.R. 393, 71 C.R. (3d) 325.
[7] R. v. Berhe, 2012 ONCA 716, 113 O.R. (3d) 137, at paras. 14 and 21, sets out the test for threshold admissibility of recognition evidence. The trial judge must determine whether:
the witness is sufficiently familiar with the accused to have “some basis” for their identification opinion; and
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.”
[8] In R. v. Hudson, 2020 ONCA 507, 391 C.C.C. (3d) 208, at para. 37, Tulloch J.A. (as he then was) provided helpful guidance on the focus of the inquiry when he said:
The thrust of this inquiry is aimed at determining the level of familiarity of the potential witness with the accused. In assessing this level of familiarity, the trial judge should focus on the nature of the relationship between the potential witness and the accused, including the frequency and intensity of past contact. The fundamental question for the trial judge, is whether the potential witness is sufficiently familiar with the accused such that the witness may be able to provide valuable identifying information about the accused that a trier of fact, with access to only the accused, the video, and photographic evidence during trial, will not be able to or unlikely to ascertain for him or herself. In answering this question, the trial judge should base his or her determination primarily on the evidence of the nature of the relationship, including the nature of past contact, as opposed to a potential witness' anticipated testimony. While a potential witness' anticipated testimony may be of assistance in borderline cases, trial judges should be wary of the allure of potential witnesses who, despite having only a general level of familiarity with the accused, purport to be able to offer descriptions capable of identifying them. In other words, a trial judge should generally only permit a potential recognition witness to testify where the judge is satisfied, on a balance of probabilities, that the witness' relationship with the accused affords him or her a level of familiarity that will enable the witness to provide valuable and otherwise unavailable identifying information.
[9] Before turning to the facts of this case, I must deal with I.T.’s attempt to add an additional layer to the test. In a rather novel way, I.T. submits that there is a third requirement that must be met: the lay witness must specifically identify idiosyncratic features of the individual that are visible in the video or photograph. This proposition comes from Harradence J.A.’s dissent in Leaney which I.T. argues survives the Supreme Court of Canada’s consideration of the appeal.
[10] This argument can be dispensed with quickly. Blair J.A. in Berhe at paras. 10-22 specifically rejects this submission.
[11] I.T.’s further argument that subsequent appellate decisions have cast doubt on Blair J.A.’s reasoning is without merit. The Ontario Court of Appeal has consistently referred to the “prior acquaintance/better position” test since Berhe was decided without any variation in it that could support I.T.’s position. See for recent examples of this: Hudson, at paras. 28-35; R. v. Aragon, 2022 ONCA 244, at paras. 18-27; R. v. Farah, 2022 ONCA 243, at paras. 14-16.
[12] Finally, the cases relied upon by I.T. can be distinguished as they do not deal with the threshold test of admissibility but rather the ultimate reliability of the recognition evidence: R. v. M.B., 2017 ONCA 653, 356 C.C.C. (3d) 234; R. v. Oliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501.
[13] This is not to say that the inability of a recognition witness to point to any unique identifiable features may never be factor in assessing whether the witness has some advantage due to their prior acquaintance that helps the trier of fact. This very much depends on the totality of the circumstances. Just as an example, such an inability to do that for a longtime close friend may well simply be a result of the witness’s lack of communicative skill. However, when it comes to a witness who has only had limited or rare dealings with the subject, it may well be relevant to whether the opinion will be of any assistance to the trier of fact. It is the interplay between the specifics of the prior acquaintance and the ability to assist the trier of fact due to that, which must be carefully assessed: R. v. Berhe, 2013 ONCJ 368, [2013] O.J. No. 3186, at paras. 10-35. Moreover, it may also become a factor in the test for admissibility under the prejudice vs. probative value assessment: Farah, at paras. 18-20.
[14] Before moving to the assessment of the evidence, I wish to make clear that although in submissions, reference was made to independent evidence such as cellphone records confirming the two witnesses’ recognition evidence, that evidence cannot be considered on whether the admissibility test has been made out by the Crown: Aragon, at para. 28.
2. Mr. Tomlinson’s evidence is admissible
[15] The defence does not really dispute that Mr. Tomlinson has had prior acquaintance with I.T. I find that Mr. Tomlinson has had a significant one. It provides a firm foundation for his recognition opinion.
[16] Mr. Tomlinson has been the Deputy Youth Center Administrator of the RMYC since 2023. It is a senior administrative portfolio. Prior to that, he was a Youth Services Manager since 2012. As a senior manager, he performed different roles. He oversaw the day-to-day operations of a living unit, a shift manager’s office, and an intake unit. The intake unit is where youths first brought to RMYC are assessed and interviewed to identify their needs and contacts. Mr. Tomlinson was in the intake unit in and around 2018 and 2019 to 2023. As part of his role in the intake unit, he would always conduct an intake interview with the youths in order to get to know them and their situation. Such interviews ranged from ten minutes to an hour. In addition, in the course of his duties, he interacted with the youths as he toured the living units and addressed any concerns and needs. These would involve face to face interactions and conversations. He would also view CCTV footage of youths while they were on the unit.
[17] Mr. Tomlinson knew I.T. who has been admitted about seven or eight times to RMYC over a six-year period. The first time he met him would have been his first admission. He did not recall much detail, but it was a shorter stay. Mr. Tomlinson testified that he conducted multiple intake interviews with I.T., estimating probably two to four times, which lasted mid-range in duration. He also recalled having a youth debrief with I.T., more than once, after an incident or alleged behavioral infraction. Such debriefings, depending on how cooperative the subject is, can last from seconds to 15 minutes. In addition to the interviews and debriefs, Mr. Tomlinson had other personal dealings with I.T., talking to him, and seeing him around the institution. He has seen him walking and standing about. He recalled his last in-person interaction with I.T. to have been about June of 2023. Mr. Tomlinson testified that in comparison with other youths at RMYC, I.T. would stand out on the high end. Mr. Tomlinson testified that he was very familiar with I.T.
[18] The central issue is whether this past acquaintance provides Mr. Tomlinson with some advantage that would shed light on the identity of the subject that the jury would not have. I find that it meets this requirement for the following reasons.
[19] First, I appreciate that at any given time, there are many youths at RMYC, perhaps over a hundred. They also come and go. Thus, I.T. would be but one of many youths that Mr. Tomlinson would have interviewed or encountered over the years. That said, these are not merely brief or casual encounters. While some with I.T. may have been inconsequential, a number were professional and meaningful interactions done for a serious purpose. Put another way, there is a reason why Mr. Tomlinson would remember I.T. In addition, I.T. was admitted on a few occasions to the facility and was interviewed by Mr. Tomlinson several times. Even the observations made of him within the institution would be done for supervision and addressing the needs of the youths. All of this would provide a significantly more in-depth familiarity with I.T. than the jury would have. Indeed, this type of relationship, though not a personal or familial one, would be an intense professional one designed to ensure the safety and needs of young people while they are in the state’s custody.
[20] Second, the last encounter would be closer to date of the offence of October 24, 2021, than the trial. I.T. was still a youth then. Since then, as Mr. Tomlinson testified, I.T. has matured and looks older. His build is larger. He now has a moustache. In this way as well, his prior acquaintance closer to the time of the offence provides Mr. Tomlinson with an advantage that the jury will not have.
[21] Third, while the defence points to the fact that there is a photo of I.T.’s arrest for murder that the jury will have to compare with the video of the way I.T. looked at the time of the shooting, that photo does not reveal anything more than a head shot. It does not show his body or his movements—things that Mr. Tomlinson had a chance of becoming familiar with. Moreover, I.T. was arrested several months after October 24, 2021. His hairstyle in the arrest photo taken in February of 2022 is significantly different from the hairstyle of the person alleged to be him in the videos. If I.T. had changed his hairstyle, it could be difficult, even misleading, to resort to the arrest photo to make direct comparisons as the jury would be permitted to do: R. v. Nikolovski, [1996] 3 S.C.R. 1197, 31 O.R. (3d) 480.
[22] Contrast the situation in Berhe, 2013 ONCJ 368, at paras. 44-47, where that ability of the trier of fact to make comparisons was a more significant consideration. In that case, the evidence was a still photograph of the accused (not audio/video), which made the acquaintance's level of familiarity with the accused less useful: "the fact that the officers had personal interaction with the accused at close quarters does not provide them any advantage that I do not have by simply making the comparison between the “mug shot” and [the still photograph]" (Berhe, at para. 46).
[23] In this case, since the identity footage consists of videos, Mr. Tomlinson has an advantage over the jury in identifying the accused: his numerous interactions with I.T. familiarized him with I.T.'s physicality and, by extension, those factors that can help in identifying a person in a video, such as "height, stature, posture, manner of movement, facial expression, voice, or physical manifestation of personality" (Berhe, at para. 46).
[24] Fourth, Mr. Tomlinson’s past acquaintance with I.T. has given him this opportunity to make specific observations about I.T.’s mannerisms and gait; something that the jury will not have. Mr. Tomlinson testified that I.T. would tuck his hands in his pants when walking around. I.T. would also pick at his hair and the side of his head. Mr. Tomlinson testified that I.T.’s gait was a little bit unique. It was a slow, plodding, heavy footed walk with his toes pointed inward. While the defence disputes any of this is all that unique to I.T., the person on the videos alleged to be I.T. demonstrates these mannerisms, on more than one occasion. Just as an example, this person picks at his hair at the side or the front several times at various locations during the video surveillance compilation of October 21 to 22, 2021. These are not momentary or reflexive actions but appear to be a habitual playing with one’s hair. In terms of gait, the subject alleged to be I.T. walks in a deliberate and slow fashion whereby one foot nearly crosses another at certain points. In my opinion, the prior interactions with I.T. give Mr. Tomlinson a window into such identifying features of I.T. on display in some of the videos that is far superior to that of the jury. The jury will not see I.T. walk. His behavior visible to the jury will be constrained by the artificial and formal atmosphere of the courtroom. Indeed, it is fair to say, without Mr. Tomlinson’s recognition opinion and the reasons he outlined for it, the jury would be bereft of this highly material evidence.
[25] I would go so far as to say even had I accepted the defence position that the test for admission required some unique or idiosyncratic identifying feature, in my view, it would be met for Mr. Tomlinson’s evidence.
[26] It is true that in terms of physical appearance, at the preliminary inquiry, Mr. Tomlinson testified nothing specific stood out for him regarding I.T. On the voir dire, Mr. Tomlinson essentially agreed that he makes a yes or no assessment. Yet I find this not an unthinking or impressionistic identification. Mr. Tomlinson identifies I.T. from facial features including a wide nose, his posture, and stocky build, in addition to the mannerisms and gaits he identified. In my view, one must be mindful that in making an identification, a witness unlikely just focuses on one physical feature of a subject’s appearance. Rather, it is the constellation of features and their relationship to each other that a witness uses to make a recognition. On the threshold admissibility question, it is really a witness’s past familiarity and acquaintance that permits the superior ability to recognize I.T. in comparison to the jury. As Tulloch J.A. cautioned in Hudson, on the threshold question, in general, less consideration should be given to the capacity of a witness to offer compelling identifying descriptions.
[27] Finally, I should note that quality of the videos that Mr. Tomlinson was asked to identify are very good. No concern arises from this.
3. Mr. Roe’s recognition evidence is admissible
[28] As with Mr. Tomlinson, the defence does not dispute Mr. Roe has had past familiarity with I.T.
[29] Since 2010, Mr. Roe has worked at RMYC, first as a Youth Services Officer and then starting in 2018 as an acting Youth Services Manager. In the following year, he returned to his role as a Youth Services Officer until August of 2022, when he became Youth Services Manager.
[30] As a Youth Services Officer, he was involved daily with the youths in the unit, interacting with them, dealing with issues, and doing case management activities such as going over behavioral plans and interacting with officials and sometimes family. Case management of youths is more involved than it is for adults. A Youth Services Officer is on the unit in person and has day-to-day supervision and direct interaction with youths on the unit. RMYC is laid out in cottages and for the main part, he was working in unit 3B.
[31] As a Youth Services Manager, Mr. Roe oversees a unit. Presently, he oversees the day-to-day practice on unit 4A and does case management. In that role, he has daily face-to-face interactions with the youths. In addition, he has occasion to review CCTV videos at the institution. He also interacts with youths on other units because when other managers are off, he covers their duties. Also, if there is an incident or an issue on other units, he also attends.
[32] Mr. Roe first met I.T. about four years previous to 2023. He also knows I.T. by a nickname. Mr. Roe recalls the first interaction with I.T. as there was an issue with an officer and Mr. Roe had to restrain I.T. Mr. Roe placed I.T. against the wall after there was an argument. This lasted a couple of minutes. After that, he saw I.T. in person on other units. Mr. Roe was unable to give a time frame as to how often he saw I.T. but he testified it was multiple times but only for short stints. Mr. Roe believed I.T. had three separate stays at RMYC but that was just based off the units he was on.
[33] Mr. Roe testified that he talked with I.T. way more than once. He could not remember the last time he saw him in person. He estimated having perhaps eight to ten full conversations with I.T., probably not lasting more than a couple of minutes at a time. He further estimated that he had probably hundreds of hours of being in I.T.’s presence and seeing him, though not necessarily interacting with him. When asked about the time directly spent with I.T., whether it was sports or something else, he could not give a time frame, but he estimated it would be more than hours but days in total.
[34] Aside from the first interaction, the only other time that stood out in his mind, was when I.T. made threats to him and they informally talked about it when he was on unit 4A. When asked how familiar he was with I.T., Mr. Roe testified he’d say “pretty familiar.” When asked if I.T. was memorable given the number of youths in the institution, Mr. Roe testified he was memorable because in I.T.’s interactions with certain people, he “carried himself very proud.” Mr. Roe testified that he would walk around confidently with his head up.
[35] When asked if there was anything that stood out about I.T.’s appearance such that he would recognize him, Mr. Roe testified “Not necessarily. His complexion, yes. But no.” On the voir dire, Mr. Roe could only explain that what he meant by this was that he had lighter skin, but he was really unable to explain it further.
[36] On the voir dire, Mr. Roe admitted that I.T. did not necessarily stand out in his mind as he dealt with hundreds of people in RMYC. He was unable to explain in a fulsome way how he recognizes I.T., but testified it was through training, and repetition in the opportunity to observe and interact with him. Mr. Roe described that it was more a form of a muscle memory, where he has a feeling that it is I.T. In identifying I.T., Mr. Roe focused on his facial features. That caused him to recognize I.T.
[37] In cross, Mr. Roe recalled I.T. doing two stints at RMYC, about 10 months in duration. He did not know exactly how long, but there was one extended period. Moreover, Mr. Roe recalled I.T. had done 6 months at RMYC on the charge before the court. Mr. Roe knew him primarily by his nickname and last name but he did not recall his first name. Mr. Roe had no direct oversight over I.T.
[38] For the most part, I.T. did not stand out to Mr. Roe, but there was the incident where he had put his hands on I.T. and placed him against the wall in order to secure him. He was face-to-face with him that time. Mr. Roe testified he knew who I.T. was given the small number of youths there and it helped him do his job to know the youths.
[39] In addition to his complexion, Mr. Roe pointed to I.T.’s high cheekbones when compared to others and his nose. For him, his recognition was a matter of knowing I.T.
[40] When Mr. Roe was viewing the videos, he came to a snap assessment of whether it was I.T. or not. When he was not confident it was, he said he was not confident. Mr. Roe denied that it was a guess when he gave his opinion. He said it was about knowing I.T.’s face but that he could not really articulate it more than that. He relied on his degree of familiarity with I.T.
[41] I have set out Mr. Roe’s testimony in some detail. I find for essentially the same reasons I found Mr. Tomlinson’s testimony admissible, Mr. Roe’s recognition also meets the test for admissibility. It is unnecessary to elaborate further. I conclude due to his prior acquaintance with I.T., Mr. Roe is in a better position than the jury to identify I.T. His advantage comes from his past familiarity and interactions with I.T. He has an advantage that can shed light on the surveillance video.
[42] While I appreciate there are more concerns about Mr. Roe’s recognition opinion evidence than which exists for Mr. Tomlinson, these go to the ultimate weight the trier of fact will place on his testimony.
4. Voice Identification by Mr. Tomlinson is Admissible
[43] Mr. Tomlinson identified I.T.’s voice on some recorded calls to the Beck taxi dispatcher. The defence challenges the admissibility of this evidence.
[44] Mr. Tomlinson outlined his past familiarity with I.T.’s voice. It matches the opportunities he testified to on the Leaney voir dire. During the intake interviews, I.T. would speak with him. Mr. Tomlinson estimated this happened four times. During incident follow-ups, I.T. and Mr. Tomlinson would also speak. This happened about 10 times. Then there were the informal interactions. During Mr. Tomlinson’s tours around the institution, he would engage informally with I.T. These interactions were typically short.
[45] Mr. Tomlinson, in identifying I.T. on the taxi dispatch audio clips, pointed out that I.T.’s voice stood out. He had a drawn-out type of speech, a mumble, or a drawl. In one recording, I.T. said “yee” which was something I.T. had said in his conversations with Mr. Tomlinson.
[46] Voice identification evidence is admissible in Canadian courts under the general rules of admissibility, and “[w]hen tendered through a lay witness, it is not considered opinion evidence and there are no special preconditions to admissibility”: R. v. Shanker, 2023 ONSC 5812, at para. 34, citing C. Sherrin, “Earwitness Evidence: The Reliability of Voice Identifications” (2015) 52 Osgoode Hall L.J. 819-862. See also R. v. Pinch, 2011 ONSC 5484, [2011] O.J. No. 5024, at para. 70 and the cases cited therein. Nevertheless, for such evidence to gain admissibility, the party tendering it must lay a foundation for the witness’s ability to identify the voice. For example, by adducing evidence that the witness had more than fleeting exposure to the voice in circumstances where the witness could connect the voice to a particular person: R. v. Portillo (2003), 17 C.R. (6th) 362 (Ont. C.A.), at paras. 39-43; R. v. Brown, [2003] O.J. No. 4592 (C.A.) at para. 4. Generally, the “inherent frailties” of voice identification go to weight rather than admissibility: R. v. Badgerow, 2008 ONCA 605, 177 C.R.R. (2d) 342, at para. 9, leave to appeal refused, [2008] S.C.C.A. No. 483, and R. v. Williams, 23 O.R. (3d) 122. However, if in the circumstances of the specific case, the reliability of the evidence is so suspect, it may not be admitted as its probative value is outweighed by its prejudicial effect: Pinch, at para. 75.
[47] I find Mr. Tomlinson’s voice recognition evidence to be admissible. Mr. Tomlinson has had considerable experience and familiarity with I.T.’s voice. It was relatively recent in time. His familiarity was gained in circumstances where one would expect him to pay close attention to what I.T. was saying to him. For example, at the intake admission to a youth facility detention center where inquiries are made to ascertain a youth’s background, connections to their family and community, and to determine their risk and level of support needed, one would expect Mr. Tomlinson’s attention would be focused on what I.T. was telling him. This was not a casual or momentary encounter. Moreover, this type of intake interview was repeated multiple times. As well, incident briefings were conducted with I.T. In my view, a substantial foundation was laid for the reliability of this evidence.
[48] Just for comparison, no issue of admissibility arose in the case of R. v. Dixon, 2019 ONCA 698, at paras. 3-6 and 11, where the level of familiarity was that the witness and the accused went out on a dinner date, and then went back to the accused’s apartment where they watched television and had a couple of drinks. This was the only contact they had before the phone call giving rise to the voice identification evidence.
[49] That determined, I am aware that voice identification evidence is even more fraught with dangers than eyewitness identification evidence and must be treated with extreme caution: R. v. Dodd, 2015 ONCA 286, 322 C.C.C. (3d) 429 at para. 79; R. v. Clouthier, 2012 ONCA 636, at para. 19; R. v. Quidley, 2008 ONCA 501, 232 C.C.C. (3d) 255, at para. 36.
[50] The Court of Appeal recently held that in a jury trial where the Crown relies on voice identification evidence, “the trial judge must give careful direction to the jury, warning of mistakes that can be made”: R. v. A.W., 2024 ONCA 564, at para. 46. When there is a need for that general caution, trial judges are “required to draw a careful linkage between the challenges inherent in voice identification evidence generally and the specific evidence in this case”: A.W., at para. 55.
[51] In the case at bar, after hearing the whole of the evidence and assessing the germane issues as they unfold during the trial, if required, I will provide the jury with the appropriate caution and instructions.
B. Prior Discreditable Conduct
[52] The Crown seeks to introduce evidence of prior discreditable conduct at I.T.’s trial. There are three bodies of evidence at issue:
- Largely surveillance video evidence surrounding an incident on October 3, 2021, where it is alleged that I.T. discharged a firearm in a public place;
- A video of a man at 300 Front Street alleged to be I.T. on October 21, 2021, allegedly possessing a firearm in his waistband; and
- Relationship evidence between I.T. and Mr. Roe and Mr. Tomlinson.
[53] The relevance of this evidence bears on a central issue of this trial: the identity of the perpetrator who shot Mr. Jung on October 24, 2021.
[54] The test for admissibility is well-known. Such evidence is presumptively inadmissible. The Crown bears the burden of proving that the probative value of that evidence outweighs the prejudice of its admission: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 55.
The October 3, 2021, discharge of the firearm
[55] The Crown seeks to introduce several CCTV surveillance video recordings about a man alleged to be I.T. firing off multiple rounds in the parking lot of a housing complex known as Parma Court in Scarborough. There is forensic evidence supporting the conclusion that this firearm is the same firearm that shot and killed Mr. Jung on October 24, 2021. The Crown relies on the video surveillance taken of this person on October 2 and 3, 2021, to prove the man who fired the gun in the parking lot was I.T. This includes the recognition evidence of Mr. Tomlinson and Mr. Roe. Thus, the issue in question for which the Crown seeks the admission of this shooting is to establish that I.T. had the means and opportunity to commit the crime in question. The Crown does not contend that the evidence has probative value or is admissible on the basis of similarities between the shootings of October 3 and October 24, 2021.
[56] Subject to the appropriate balancing of probative value and prejudice on the specific facts raised by a case, numerous authorities have admitted past possession or access to firearms, whether it is the alleged murder weapon or not, as being probative to the issue of the accused having the means and opportunity to commit a shooting: R. v. B.(L.) (1997), 116 C.C.C. (3d) 481 (Ont. C.A.), at paras. 6, 17, 31-39; R. v. Backhouse (2005), 194 C.C.C. (3d) 1 at paras. 156-172 (Ont. C.A.); R. v. Riley, [2009] O.J. No. 1374 (Ont. S.C.) at paras. 100-110, 166-198, aff’d 2017 ONCA 650 at paras. 156, 235; R. v. Cain, 2015 ONCA 815, 330 C.C.C. (3d) 478, at para. 67; R. v. Asante, 2022 ONCA 657, [2022] O.J. No. 4176, at paras. 28-31.
[57] I find that there is significant probative value to this evidence. It is the same firearm used to kill Mr. Jung. This establishes a direct link between the alleged murder weapon and the weapon used on October 3. The temporal proximity between the October 3 incident and the October 24 shooting of Mr. Jung, is relatively speaking, close. A matter of three weeks. Moreover, the Crown alleges there is another alleged act of possession by I.T, even closer in time to the shooting, on October 21. When viewed in the context of the whole of the evidence the Crown seeks to rely on, the probative value supporting the inference that I.T. possessed the firearm for some time before the shooting only increases. Then there is evidence of authorship. For this evidence to be admissible, there must be some evidence upon which a trier of fact can find that it was I.T. who fired the firearm on October 3, at the Parma Court parking lot. Mere opportunity or possibility is not sufficient. Absent a nexus between the October 3 incident and the accused, the evidence is irrelevant and inadmissible: R. v. Sweitzer, [1982] 1 S.C.R. 949; R. v. Perrier, 2004 SCC 56, [2004] 3 S.C.R. 228; R. v. Shepherd (2001), 153 C.C.C. (3d) 345 (Ont. C.A.). In this case there is, from the video surveillance evidence, the Leaney witnesses of Mr. Tomlinson and Mr. Roe, and other circumstantial evidence, a significant body of evidence connecting I.T. to the discharge of the firearm on October 3, 2021.
[58] On the other hand, I find there is significant moral prejudice to the evidence of someone alleged to be I.T. discharging a firearm on October 3, 2021. In assessing the possible prejudice of the admission of bad character evidence, Charron J.A. in B.(L.) at para. 24 held that consideration should be given to such matters as: (i) how discreditable it is; (ii) the extent to which it may support an inference of guilt based solely on bad character; (iii) the extent to which it may confuse issues; and (iv) the accused’s ability to respond to it.
[59] On October 3, this person fired off several rounds in a public place. Although no one was hit or injured by that act, clearly, this evidence shows this person has a predisposition towards committing violent gun crimes. The shooting appears to be random, reckless, and without any regard for public safety. Given that the Crown does not allege a motive for I.T. to have shot Mr. Jung, who was just driving I.T. in his taxi to a location in Scarborough, the prejudice is heightened. Said differently, the October 3, 2021 incident, which seems to be a random act of gun violence, paints I.T. as the type of bad person who would shoot a defenceless taxi driver for no apparent reason.
[60] Significant to my balancing is the fact that the defence admits that the firearm used by the person on October 3, 2021 is the same firearm used by the person who shot Mr. Jung.
[61] In light of this and after considering all the other relevant factors, I find the right balance will be achieved by permitting the Crown to introduce the evidence including the surveillance evidence up to the point in time just before the person takes out the firearm and shoots it in the Parma Court parking lot. Thereafter, visual evidence of the shooting itself and any evidence of the aftermath of the discharge of the firearm such as the finding of the bullet holes and the casings at the scene is not admissible. I observe that a similar solution was crafted by Rosenberg J.A. in Backhouse, at paras. 164-173.
[62] An admission that the person seen in the October 3, 2021 videos had with him the same firearm that was used in the shooting of Mr. Jung will give effect to the probative value of the evidence and avoid a lot of the prejudicial effect. I expect the Crown and the Defence will be able to work out the specifics of this admission.
[63] The remaining moral prejudice of I.T. simply possessing a firearm about three weeks earlier is outweighed by the probative value. Reasoning prejudice, when the evidence is limited in this fashion, is also lessened. The video surveillance evidence and the recognition evidence will not add greatly to the time of the trial. The issue of identity that the evidence targets is straightforward. It is neither confusing nor distracting. The defence can meet this evidence.
[64] In sum, this evidence as I have outlined is admissible as the Crown has proven on a balance of probabilities its probative value outweighs its prejudicial effect; both moral and reasoning prejudice combined.
Video of the man allegedly with a gun on October 21, 2021
[65] The Crown seeks to tender video surveillance evidence of a man alleged to be I.T. exiting the front door of an AirBnB on October 21, 2021, and walking to the elevator. As the man leaves the front door of the condominium unit, the Crown alleges he has a firearm tucked into his waistband that he quickly conceals. The Crown seeks to tender this evidence to support the inference that three days before the shooting of Mr. Jung, I.T. had access to and possessed a handgun. There is no evidence forensically connecting this firearm to the firearm that shot Mr. Jung.
[66] The issue in question is the same as above. The probative value of this evidence is increased significantly by its close temporal connection to the shooting. It was a mere three days before the killing of Mr. Jung. However, the probative value is lessened by the fact that the video, even when freeze framed and zoomed in, is less than clear that what the man has in his waistband is a handgun.
[67] Ultimately, I am satisfied that there is indeed probative value to this evidence when it is considered not in isolation, but in the context of the whole of the evidence. The jury could conclude that it was I.T. who had the firearm on October 3, 2021 that was discharged in the Parma Court parking lot. If they do, it makes the inference that the black object in the waistband was a gun that much stronger, assuming they also conclude that this person exiting the apartment was I.T. Moreover, the dark object at the waistband does by its shape resemble the butt of a handgun. Finally, the movements made by the person in ensuring that it was hidden by his jacket are consistent with a person concealing an illegal item like a handgun.
[68] The videos taken in the condominium hallway are of a high quality. A few of the surveillance videos taken in the condominium on different occasions show the man unmasked by any COVID mask and his facial features visible. The recognition opinion evidence also plays a role in connecting I.T. to this person. In my opinion, it is a reasonable inference for the jury to draw that this man is I.T.
[69] In terms of prejudice, there is some moral prejudice. However, in this instance, it is limited by the fact there is nothing connecting the possession of the handgun to any use of it. Thus, the criminality of this incident is far less serious than the murder charge I.T. is facing. In my view, an appropriate instruction to the jury would largely deal with the moral prejudice.
[70] Reasoning prejudice is limited since even if excluded, the Crown intends to lead this video surveillance evidence for other purposes than showing I.T. had access to a firearm that day. For example, the Crown alleges that the pants worn on October 2, 2021 by the person exiting the condominium unit with a gun are similar to those worn by the person in the convenience store on the night of the Mr. Jung’s shooting. As another example, the video surveillance will be presented for the purpose of proving this person with the alleged gun at his waistband is I.T. Like before, this evidence is not confusing or distracting.
[71] In sum, I find that the balancing of probative value vs. prejudice warrants the admission of this evidence.
Relationship evidence between I.T. and Mr. Roe and Mr. Tomlinson
[72] Here, the probative value comes from the fact that for the jury to properly assess the weight of the recognition evidence of Mr. Tomlinson and Mr. Roe, the circumstances of their prior acquaintance must be fleshed out before the jury. Put another way, without some of the particulars of those interactions between the recognition witness and I.T., the jury will not be in a position to make a reliable assessment of their opinions.
[73] Overall, I find that there is significant probative value to the opinions of Mr. Tomlinson and Mr. Roe. I have come to this conclusion based upon the evidence on the Leaney voir dire. The probative value of this opinion evidence is strengthened by how Mr. Tomlinson and Mr. Roe came to identify I.T. from the various surveillance videos. They were both asked by Detective Jitta to view the surveillance video but were not told why or who the homicide officers were looking for. They viewed the videos, which often had more than one person in it, and simply asked if they could recognize anyone. They identified I.T. on their own without any suggestive influences. Mr. Tomlinson and Mr. Roe did this separately and were unaware of the fact the other was being asked to do the same. True, once they identified I.T. in the videos, they may well have been influenced by that fact or the person wearing similar clothing appeared in other videos, but that is a matter of ultimate weight to be determined by the jury.
[74] In addition, the fact that to a greater or lesser extent, they could identify the person as I.T. even when wearing a COVID mask, is a matter of ultimate weight. There are sufficient facial features, bodily build characteristics, movement, and mannerisms visible to allow a person to reasonably come to an opinion.
[75] Countervailing, there is prejudice to I.T. in that if the circumstances of the relationship are fully explored, they would show I.T. as being held in a youth detention center either on remand or while serving a sentence. Obvious moral prejudice. As well, a certain amount of reasoning prejudice arises if the jury gets distracted about I.T.’s past misconduct that led to his detention at RMYC.
[76] Having heard Mr. Tomlinson and Mr. Roe’s evidence, I find that with appropriate limitations, careful use of language, and appropriate jury instructions when needed, the prejudice can be mitigated. I will place limits on the questioning regarding the admission of the circumstances under which the witnesses encountered the accused in order to minimize the prejudice: R. v. Brown (2006), 215 C.C.C. (3d) 330 (Ont. C.A.), at para. 36. To be clear, I am not saying that I find that their evidence would otherwise be inadmissible without such guidelines. Even if fully explored, there remains a case for admission. What I am saying is for the moment, trial fairness will be enhanced if such caution is exercised by the Crown and the witnesses.
[77] To be clear, I do not limit the defence in any way. They are free to take whatever tact they wish in their cross-examination of the witnesses, fully exploring the details of the relationship if they choose to. In such an instance, a strong jury instruction will sufficiently ameliorate the prejudice.
[78] The following guidelines should be observed by the Crown and the witnesses.
[79] The Roy McMurtry Youth Center should be identified by name or by neutral terms like “institution” or “facility” or “youth facility” or “youth institution.” It should not be referred to as a jail or detention center. Moreover, it is unnecessary to set out, unless specifically asked by defence counsel, that this is a place where youths are in custody while waiting on remand for trial or serving a sentence. References to terms like “bail,” “sentence”, “trials” or “probation” should also be avoided. Likewise, terms such as “detainee” or “offender” should be avoided. In testifying, both Mr. Tomlinson and Mr. Roe were professional and seemed very comfortable referring to persons within the institution as “youths”, using neutral terms, and not getting into the specifics of what I find should be avoided.
[80] Of course, the witnesses should not testify as to why I.T. was at RMYC; for example, whether he was there on remand or whether he was serving a sentence. Both witnesses have not said anything specific about that. Of course, they should not mention any charges he was facing or offence he was serving sentence on. It seems to me that they do not actually know or recall any of this.
[81] More specific to Mr. Roe, he should not get into any threats made by I.T. against him unless specifically asked by the defence. He should also not get into the specifics of Unit 5, which is a drug unit, or that he worked in the drug unit. That is irrelevant. There is the first encounter that Mr. Roe testified to whereby he restrained I.T. against a wall after I.T. had an argument with another officer. I find that to be, relatively speaking, a fairly neutral incident, should the Crown seek to get into it. That said, not much is gained by it and certainly neither Crown nor Mr. Roe were interested in getting into any specifics. The specifics are unnecessary. Provided that the specifics are not delved into, I do not see why this cannot be inquired into. Though I will leave that to the Crown.
[82] There is no real prejudice to the evidence about “intake” or “intake interviews” or “debriefing after incidents” provided no specifics are gone into about the nature of the incidents.
[83] I would invite the defence to identify whether other areas are problematic or further guidelines are necessary. Other than that, the questions and answers will be dealt with as the questions are asked and the answers given. The defence, led by experienced counsel, will be free to object at any time. In addition, experienced Crown counsel are aware that if an area of questioning could pose issues or potential objections, that would be a proper time to ask for the jury to step out before proceeding with such questioning.
[84] Regardless of the evidence given by Mr. Tomlinson and Mr. Rose, it is my intention to give both mid-trial instructions after their testimony as well as canvassing their testimony and its proper uses in the final charge to the jury.
[85] For these reasons, the applications are allowed in part.
Justice S. Nakatsuru Released: October 18, 2024