Ontario
Superior Court of Justice
Between
Her Majesty
the Queen
Applicant
and
[REDACTED]
[REDACTED] and [REDACTED]
C. Sweeney,
for the Applicant, Her Majesty the Queen
M. Friedberg
for the Respondent, [REDACTED]
D. Steinberg
for the Respondent, [REDACTED]
Released: November 19, 2008
Thorburn J.
RULING RE
USE OF VIDEOTAPE OF PHOTOGRAPHIC LINE-UP
1. The Issue
[1] The
Applicant, Her Majesty the Queen seeks to introduce a videotape of the photo
lineup
in which the
Complainant identified Messrs. [REDACTED] and [REDACTED] as the
perpetrators
of the offences with which they have been charged. The Respondents, [REDACTED]
[REDACTED] and
[REDACTED] object to the introduction of this evidence.
[2] The
Crown relies on the principles set out in R. v. Tat, 35 O.R. (3d) 641
(Ont. C.A.) at
para. 35
wherein Doherty J.A. held that prior statements identifying the accused are
admissible
where the
identifying witness identifies the accused at trial and evidence of
descriptions given
before an
in-court identification and particulars of an identification made before trial
are
admissible
as original evidence going to the issue of identification.
[3] In R.
v. Tat Doherty J.A. held that,
The trier of
fact will consider the entirety of the identification process as revealed by
the evidence, before deciding what weight should be given to the identification
made by the identifying witness. Evidence of the circumstances surrounding any
prior identifications and the details of prior descriptions given will be
central to that assessment.
...
The trier of
fact is told to look to the entirety of the identification process before
deciding what weight should be given to the identifying witness' testimony. In
this respect, evidence that the witness previously gave a description which
matched the accused or previously selected the accused in a line-up serves no
different evidentiary purpose than would evidence showing that the identifying
witness had an ideal vantage point from which to observe the perpetrator of the
offence. Both are factors which will assist in weighing the witness' in-court
testimony.
[4] The
Respondents suggest that viva voce evidence regarding the photo line-up
process is
permissible
but that the videotape of the photo line-up process is not. Counsel suggests
there is a
serious risk
that the videotape will be seen by the triers of fact as adoption or repetition
of the
conclusions
reached by the Complainant during the videotaped process of identification.
Finally,
they suggest
that the videotape contains reference to the Complainant's holiday plans and
extraneous
material that they say demonstrates that the Complainant had a friendly
relationship
with the
police.
[5] The
Respondents have been unable to locate any support for their proposition that
videotaped
evidence of the photo-line-up process should be excluded and the Crown must
rely
only on the
Complainant's viva voce testimony regarding the photo line-up process.
[6] Counsel
for the Crown has agreed to show the tape of the photo line-up process but to
exclude
extraneous material that precedes the photo line-up process itself.
[7] Given
the broad principles articulated by Doherty J.A. and the reasons therefore, I
am of
the view
that the videotape of the photo line-up process should be admitted as evidence
in this
proceeding.
[8] It is
the best evidence available of the entirety of the identification process and
the
Respondents
have not satisfied me that the probative value is outweighed by any prejudicial
effect on
the accused. It is important to consider the entirety of the identification
process as
revealed by
the videotape, in order for the triers of fact to decide what weight should be
given to
the
identification made by the Complainant. Evidence of the circumstances and
details
surrounding
these prior identifications will be central to that assessment.
[9] For
these reasons the Application to rely on the videotape photo line-up is allowed
on the
understanding
that the extraneous material preceding the photo line-up itself will not be
part of
the
videotape presented to the triers of fact.