Looked like a gun, walked like a gun, quacked like a gun

Dirie and Omar were both convicted of weapons possession offences. The sole issue at trial was identity. An apartment building equipped with a surveillance system captured the crime in progress. The trial judge found, beyond a reasonable doubt, that the two men in the footage were Dirie and Omar. She compared the men in court to the security footage, and gave some weight to the evidence of a police officer who had encountered Dirie on many occasions and who also recognized him in the footage. His posture and the way he spoke out of the side of his mouth were notable features. The trial judge also concluded the objects brandished by Dirie and Omar in the footage were loaded, restricted weapons.

Dirie and Omar appealed their convictions for a number of reasons: R v Dirie, 2016 ONCA 502.

In relation to the footage, both Dirie and Omar argued that the quality was too limited for identification purposes, and that it was an unreasonable finding of fact that the objects held by the individuals in the video were determined by the trial judge to be loaded restricted firearms. Dirie argued that the distinct features which the officer testified about should not have been considered by the trial judge in identifying him. Omar argued that the trial judge ignored the fact that no clothes matching the clothes in the footage were discovered after a search warrant was executed: @ paras 4, 5.

The Court of Appeal, in a brief decision, rejected all of Dirie and Omar’s arguments. The Court found it was clear from the trial judge’s reasons that she was “alive to the risks inherent in identification evidence”, and that she properly instructed herself in accordance with the principles articulated in R v Nikolovski, [1996] 3 SCR 1197. The trial judge determined the video was of sufficient clarity and quality for comparison purposes, she reviewed the footage multiple times, and, in comparing the images to Dirie and Omar, she was entitled to rely on the relevant police evidence at trial: @ para 7.

The trial judge also recognized the significance of the footage to the Crown’s case, and did so by expressly averting to the fact that the search executed did not assist the Crown: @ para 8.

Regarding the trial judge’s finding that the objects in possession of Dirie and Omar were loaded and restricted weapons, the Court of Appeal concluded there was “ample evidence” to support the trial judge’s finding, including “the aggressive brandishing of the objects and a third party’s reaction to seeing the objects, which was captured on video”: @ para 10.


This is another recent case from the Court of Appeal (see also R v Benson, 2015 ONCA 827) which highlights the increasing importance of surveillance footage as effective (and, as in this case, sometimes critical) evidence for the Crown to lead in cases where identity may be difficult to prove. The utility of such footage is obvious: not only can it sometimes assist the trier of fact in reaching a possible determination as to identity, but it may also assist in the possible identification of other crucial details, including the possession of weapons.


Some is all you need

Webster was accused of committing offences against is former domestic partner. At the preliminary inquiry the now ex-partner testified via closed circuit television in a sequestration suite designed to allow witnesses to testify outside of the presence of accused.

She testified that she knew Webster, had been engaged to him and that they resided at the address specified in the information before the court.

The complainant was not asked to identify Webster nor from the sequestration suite would she have been able to do so.

At the conclusion of the preliminary hearing the defence argued that the accused should be discharged as the crown had failed to adduce some evidence that the accused before the court was the person who committed the offences.

The preliminary hearing judge discharged the accused. The Crown successfully sought the extraordinary remedies of certiorari and mandamus. Webster appealed to the Court of Appeal seeking to have the discharge reinstated. That appeal was dismissed: 2016 ONCA 189.

In a brief endorsement the Court reminded us that:

It is well settled that the identity of names a complainant identifies as her assailant and the person charged constitutes some evidence of identity. It is all the more so, when the name is accompanied by an address and other biographical details: R. v. Chandra (1975), 29 C.C.C. (2d) 570 (B.C.C.A.), at p. 573; and R. v. B.(D.), [2007] O.J. No. 1893 (C.A.), at para. 1.

The Court agreed with the certiorari judge that preliminary inquiry judge committed a jurisdictional error by failing to consider the whole of the evidence and in particular the identity of names as some evidence of identity.  [at para 6]


The silent witness sees it all

John Benson and Brian Timmons were neighbours. At first, they were friendly. It didn’t stay that way. Things deteriorated. One day, Timmons was working on fixing a borrowed truck. Benson set it ablaze. Timmons suffered minor burns, and property damage.

Unfortunately for Benson, he was caught on video. At trial, there was video of Benson approaching the truck with something in his hand, reaching into the driver’s side of the vehicle, igniting a fire, and quickly moving back. This evidence was critical. The sole issue was identity. Timmons watched the video, and testified that the man was Benson. Benson was convicted of four arson related charges.

On appeal, Benson raised three issues: 2015 ONCA 827. Two of those arguments concerned the surveillance footage. Benson argued that the trial judge:

  1. Did not consider the effect of the evidence of the Crown’s expert forensic video analysis on the quality, as opposed to the admissibility, of the lay opinion recognition evidence.
  2. Failed or refused to engage in any analysis concerning Timmons’ credibility, based on animus, his history of criminal misconduct, and that he lied to the trial judge about that misconduct.

The appeal was dismissed with reasons.

The Background

Timmons testified that he and Benson had known each other for at least six years. On the day of fire, Timmons heard percussion sounds and saw a cloud of smoke out his window. He saw the truck engulfed in flames. The fire department was called by a passerby. When they arrived, Timmons insisted he had set it on fire accidentally. He testified that he did not want the hassle of involving the authorities. A surveillance system had been installed by Timmons, which he had forgotten about. Timmons was reluctant to turn over the tapes. He believed he had caused the fire himself. Once he reviewed the video with police, Timmons immediately identified Benson as the fire starter [@ paras 8-12].

The Expert Video Evidence

With respect to the first issue, the Crown had adduced the video evidence at trial. The police expert who tendered the video evidence was called as a forensic video analyst. His evidence was relevant as to whether or not the video was in any way compromised or altered. When it is determined the video was not altered or changed and that it accurately depicts the scene, the video may indeed be a silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events [@ para 13-15, see R v Nikolovski, [1996] 3 SCR 1197 @ para 28]

In regard to video quality, the pixilation of the video was noted. It could not be further enhanced, which the trial judge took note of. However, whether the video was of sufficient quality to form the basis for identification was a question of fact for the trial judge, and of limited jurisdiction for review [@ para 16-18, see R v Abdi, 2011 ONCA 446 @ para 6]. In this case, the quality of the recording was relevant to the trial judge’s consideration of the content of the video, when determining what weight to give Timmons’ observations and identification of Benson. There was no need to give further consideration to the expert’s opinion, as those who are not acquainted with the accused are in no better position to identify persons in video evidence [see R v Leaney, [1989] 2 SCR 393]. The trial judge did not make a positive identification of Benson. He relied on his own observations and those of Timmons’ in making his decision on Benson’s guilt.

The Video Identification Issue

With respect to the second issue, the trial judge found Timmons to be a credible witness. While appellate courts retain power to reverse decisions where credibility assessments made at trial are not supported by the evidence, this is done sparingly. Interference with these rulings happens only in exceptional circumstances [@ paras 19-21; see R v W(R), [1992] 2 SCR 122 @ para 131, R v Burke, [1996] 1 SCR 474 @ para 5-7).

Specifically on the issue of Timmons identifying Benson, the trial judge noted a number of observations in the video in conjunction with Timmons’ evidence that he was 100% sure that the person in the video was indeed Benson:

  • The way he moved his arms;
  • The way he walked;
  • The way he limped as he was moving;
  • His Einstein hairstyle;
  • His face;
  • His body shape;
  • His thinning hair;
  • His age;
  • His build;
  • His enlarged stomach; and
  • The plaid shirt he always wore [@ para 23-24].

In cases of recognition evidence, such as this, the caution regarding the frailties of eyewitness identification still applies [@ para 25; see R v Olliffe, 2015 ONCA 242 @ para 39]. However, the level of familiarity between the accused and the witness may enhance the reliability of the identification evidence. The reliability of the evidence was enhanced by their relationship and familiarity with one another [@ para 25]. Further, the ability of a witness to point to a unique identifiable characteristic or idiosyncrasy is a concern better resolved when determining ultimate reliability, not admissibility [@ para 26; see R v Behre, 2012 ONCA 716 @ para 22].


This case again highlights the powerful nature of video evidence, especially when combined with the observations of witnesses. Although eyewitness identification evidence can be problematic, it remains important and forward-thinking law that witnesses who recognize persons captured by camera ought to be able to testify as to that knowledge – even in cases where the quality of the footage itself is less than ideal. In this case, Timmons clearly pointed out unique, distinctive, and recognizable features that signalled, to him, the person was Benson. These features were noted by the trial judge to be badges of reliability of identification. The trial judge’s own observations, when watching the video, were consistent with that of the witness [see paras 26-27]. Video evidence is an integral part of the truth-finding process. The impartiality it offers as a silent witness cannot be understated. 


New & Notable: In-dock identifications are presumptively admissible

Douglas Muir, along with four others, robbed a drug dealer at gunpoint inside his home. A high-speed chase then took place but it ended with the get-away car crashing into police cruisers. Muir was apprehended after a short foot chase while his associates were arrested in the get-away car. The car contained the three firearms that were used in the robbery as well as the stolen money, drugs and property from the robbery.


The interesting issue in this case involves the admissibility of the in-dock identification evidence: 2013 ONCA 470.


Read More

New & Notable: Identifying the admissibility threshold for recognition evidence

Yohannes Berhe was convicted of offences related to having exposed his genitals in public to a person under the age of 16. At trial the Crown called a witness, a Toronto Transit Commission officer, who recognized Berhe – presumably his face – from previous dealings. Behr was convicted and appealed: 2012 ONCA 716.


On appeal Berhe complained that the trial judge did not conduct a voir dire on the recognition evidence. The Court of Appeal agreed that this constituted an error and ordered a new trial.

Read More

New & Notable: Nikolovski Identification

Identification cases are some of the most contentious and frequently appealed; the recent case of R v Adbi, 2011 ONCA 446 is yet another example.
Mustafa Abdi was in the car business; more specifically, he was in the business of exporting high end stolen automobiles.  The case against Abdi included the evidence of police officers who observed and videotaped a man, they alleged to be the respondent at a freight yard where stolen high end automobiles were being delivered.  The lead investigator and an officer who had been on scene later compared the video images of the male alleged to be the respondent with a digital copy of the respondent's driver's licence photo.  Both men testified that they believed that the respondent was the male in the surveillance video [paras 2-3].  There was also two pieces of circumstantial evidence which were corroborative, at least indirectly [para 2].
At trial the trial judge noted that the evidence "may be sufficient unless there is good reason for me to doubt the accuracy of identification that Police Officer Baxter gave".  The trial judge also viewed the video himself and offered the following:
I have looked again and again at the evidence to discern a number of other things including the height of the accused as opposed to the man in the grey jacket.  I do not have any evidence with respect to it, but my observation tells me it is consistent.  His facial features and structure...The type of haircut - many have it; the skin colour.  All those things are part of it - none determinative.  Glasses or not, as I have said before.
As I say, I am reluctant to substitute my view of that type of evidence for a witness that was there, but I have to tell you that a close observation by me leads me to the conclusion that the person in the digital photograph, the accused and the person in the grey coat are the same [para 5 OCA].
The respondent was convicted and appealed.
On appeal he argued that the video recordings were not of sufficient quality [para 6].  Rosenberg JA, writing for the court, noted that this issue was a question of fact for the trier of fact and the scope of review is limited to a consideration of whether the quality was such that it would be reasonable for a trier of fact to making a finding [para 6]: see R v Nikolovski, 1996 CanLII 158 (SCC).  After reviewing the video in this context, Rosenberg JA concluded:
The second clip, and the clip obviously relied upon by the trial judge, is much shorter in length, just over 30 seconds, but the person alleged to be the appellant is much closer to the camera.  The quality of the video is good and it is possible to make out this person’s features.  I cannot say that the trial judge’s conclusion is unreasonable [para 7].      
In so concluding Rosenberg JA noted that the length of the video does not make it "unsuitable for use in making an accurate identification" [para 8].  Rosenberg JA further noted that although the trial judge might have appeared to have delegated his responsibility to determine the identification issue it is clear when the entirety of the decision is read that the trial judge properly came to his own conclusion [para 9].
Appeal dismissed.
DG Mack