WARNING

The Court hearing this matter directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences;
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
(b) on application made by the victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order; and
(b) on application of the victim or the prosecutor, make the order.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

486.6(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

Court and Parties

Court File No.: CR23-91
Date: 2025/04/30
Ontario Superior Court of Justice

Between:
His Majesty the King
and
Geza Gelencser, Defendant

Appearances:
A. Kortenaar and B. Rudnick, Counsel for the Crown
D. Nugent, Counsel for the Defendant

Heard: In writing

Decision on Leaney Application

Justice Lia Bramwell

Introduction

[1] In the upcoming trial in this matter, the Crown will show the jury videos found on a laptop seized by police from the master bedroom in Mr. Gelencser’s home. The face of the person filming the videos does not appear in the videos. Some of the videos show a woman whose face is not visible. The Crown’s theory is that this woman is S.P., who is now deceased. The other videos show another woman, the complainant D.P., who will testify at the trial. The Crown asks that D.P. be allowed to give evidence identifying S.P. in some of the videos and identifying Mr. Gelencser as the person filming the videos.

[2] The issue in this application is whether D.P. should be allowed to tell the jury her opinion about the unidentified woman in the videos being S.P. and the person filming the videos being Mr. Gelencser based on D.P.’s own knowledge of or familiarity with S.P. and Mr. Gelencser. This is called recognition evidence.

[3] Whether D.P. should be allowed to give this recognition evidence before the jury turns on whether the Crown satisfies me that it is more likely than not that D.P. has a prior acquaintance with the person she is identifying that gives her a basis for her opinion and, ultimately, whether D.P. is in a better position to identify the person than the jury is.

[4] In deciding whether D.P. is more likely than not to be in a better position to identify S.P. as the unidentified woman in the videos and Mr. Gelencser as the person filming the videos, I must consider all the circumstances surrounding D.P.’s knowledge of and relationships with these people including:

a. The length of time she’s known them;
b. How she knew them and how often she had the chance to interact with them up close and personally; and
c. How close in time to the making of the videos she was interacting with them. [1]

[5] For reasons set out below, I find that the Crown has satisfied me that it is more likely than not that D.P. will be in a better position to identify S.P. as the woman whose face is not visible in some of the videos and Mr. Gelencser as the person filming the videos. This evidence is admissible. It will be up to the jury to decide what weight to give it.

Does D.P. have a prior acquaintance with S.P. and Mr. Gelencser?

[6] D.P. must have a prior acquaintance with the person she is identifying that makes her sufficiently familiar with that person to be able to form an opinion about whether they are the person in the videos. The prior relationship does not need to be significant or long-term and D.P. does not need to point to a unique identifiable feature or a specific peculiarity about that person to ground her opinion. [2]

[7] D.P., will be 32 years old at the time of the trial. [3] She met and became friends with S.P. in high school and so would have known her for at least 10-12 years at the time of S.P.’s death in December, 2021.

[8] D.P. met Mr. Gelencser, through S.P., almost three years before giving her statement to the police in August, 2022. She has therefore known him for 5-6 years at this point.

Is D.P. in a better position to identify S.P. and Mr. Gelencser than the jury?

[9] D.P. was introduced to Mr. Gelencser by S.P. sometime in or around 2019. At some points in 2021, D.P. lived together with Mr. Gelencser and S.P., first in a motel room and then in Mr. Gelencser’s home, where all three of them were living when S.P. died. D.P. therefore saw S.P. on a daily basis, at a minimum, during the time periods that they lived together.

[10] S.P. died after being taken to hospital, from Mr. Gelencser’s home, in an ambulance in December, 2021. D.P. was also living in the home at the time, and she was present and saw S.P.’s condition at the time she went to the hospital. D.P. was aware at the time that S.P. had a urinary catheter in place, which is, as D.P. described it, a “pee bag.” The videos of the woman whose face is not visible, who the Crown anticipates D.P. will say is S.P., show a woman, who appears to be in her 20s, on her hands and knees on the floor, facing away from the camera, moaning and rocking back and forth, naked from the waist down, with a catheter tube clearly visible coming out of her vaginal area and going to a urine collection bag. D.P. was aware of and had seen S.P.’s urine collection bag. D.P. talked about how dark S.P.’s urine was by the time the ambulance was called. Despite the fact that specific, unique characteristics of the person are not required to be known by the witness before being permitted to give recognition evidence, it is clear that based, in part, on her specific knowledge of S.P.’s catheter and, specifically, what her “pee bag” looked like, D.P. is in a better position than the jury to determine whether the unidentified woman in the videos is S.P.

[11] D.P. had a close enough relationship with S.P. to know not only that she had a urinary catheter in place but also that S.P. had been hospitalized and had heart surgery at some point after S.P. introduced D.P. to Mr. Gelencser. Further, D.P. was able to describe how S.P. looked when S.P. returned from the hospital to resume living with Mr. Gelencser. D.P. described the way that S.P. looked, at the time she came out of the hospital, which was “beautiful” but also said that within two months, S.P. had lost a lot of hair and it looked like it had been cut off. D.P. was clearly in a position to observe and note S.P.’s physical appearance and apparent health condition in the time that D.P. was interacting with S.P. while she was living with Mr. Gelencser. This puts her in a better position than the jury, who will not see S.P. in person, to identify S.P.

[12] With respect to her ability to identify Mr. Gelencser, D.P. lived with him for many months and so would have observed his appearance, including his hands, and would have heard him speak countless times. D.P. would therefore be aware of Mr. Gelencser’s Hungarian accent and will be able to tell the jury whether, in her opinion, the voice of the person filming the videos is Mr. Gelencser’s voice. Mr. Gelencser may elect not to testify and so the jury may not have an opportunity to hear him speak.

[13] D.P.’s recognition evidence will also be considered by the jury in the context of the rest of her evidence about the videos, including her evidence about the location in which the videos were filmed. D.P. is expected to say that she recognizes Mr. Gelencser’s home in the videos. It is also anticipated that she will say that there was only a small number of people who would have had the opportunity to make such videos in that location.

Mr. Gelencser’s Objections

[14] Mr. Gelencser objects to D.P. being permitted to give recognition evidence. He argues that her evidence will be prejudicial to him. While it is true that her evidence may well be prejudicial in that it will not be favourable to him, that is not a valid reason, on its own, to dismiss the Crown’s application. It is only if the prejudicial effect clearly outweighs the probative value of the recognition evidence that I could exclude it. I find there is nothing about the recognition evidence that is prejudicial beyond the general sense in that it may be harmful for the accused’s case if the jury hears it. The probative value, on the other hand, is clear and is significant. This argument therefore fails.

[15] Mr. Gelencser also objects on the basis that the Crown will “undoubtedly” play Mr. Gelencser’s video recorded police statement before the jury and so the jury will hear his voice and be able to determine for themselves whether it sounds the same as the voice heard in the videos of D.P. and the unidentified woman. This argument fails for two reasons. First, I cannot assume that the Crown will show the jury Mr. Gelencser’s video-recorded statement. Second, even if the Crown does show the video statement, the Crown is not precluded from calling other evidence on the same topic in order to assist the jury in their determination as to whether the person filming the videos of D.P. and the unidentified woman is Mr. Gelencser.

[16] Lastly, Mr. Gelencser provided a number of cases in support of his argument that the recognition evidence of D.P. is not admissible because of what he seems to argue is a deficiency in the quality of the videos that the recognition evidence will relate to. This argument fails for two reasons. First, at least with respect to the videos in question that I have seen in the context of the s. 24(2) application, the videos are not of poor quality. From what I saw, it is easy to see and hear what is happening in the videos. Second, the cases provided by Mr. Gelencser do not support the argument that the recognition evidence is inadmissible. They support the argument that less weight should be given to the recognition evidence when the videos are of poor quality. I am not deciding what weight should be given to D.P.’s opinion evidence identifying S.P. and/or Mr. Gelencser in the videos. That is for the jury to decide. I am only deciding whether D.P.’s opinion evidence about the identity of those two people is admissible before the jury. I find that it is. Counsel are free to make arguments to the jury about what weight they should give to D.P.’s recognition evidence.

Conclusion

[17] The Crown’s application for admission of D.P.’s opinion evidence about the identification of the unidentified woman appearing in and the person filming the videos found on the laptop seized from Mr. Gelencser’s home is granted.

The Honourable Justice Lia Bramwell
Released: April 30, 2025

Footnotes

[1] R. v. Leaney, [1989] 2 S.C.R. 393 at para 33.

[2] R. v. Berhe, 2012 ONCA 716 at paras. 18, 19 and 22; R. v. M.B., 2017 ONCA 653 at para. 37.

[3] Crown factum on the s. 486.2(2) CCTV application, para. 7.