R v Truong, 2021 ABQB 856

Court of Queen’s Bench of Alberta Citation: R v Truong, 2021 ABQB 856 Date: 20211029 Docket: 180460073Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Jimmy Truong Accused _______________________________________________________ Ruling on Voir Dire #4 & 5 Further Disclosure, Vehicle Identification Evidence and Demonstrative Evidence Honourable Mr. Justice N. Devlin _______________________________________________________ Overview [ 1 ] Jimmy Truong is charged with three counts of first-degree murder related to two shooting incidents.

Both took place in the fall of 2016, one in Calgary which took the lives of Cuc Lung and Quang Tran, and one in Edmonton shortly thereafter that claimed the life of Phu Phan. Mr Truong’s trial was set to be taking place currently, before a jury, for six weeks. I was compelled to adjourn the trial in mid-January, when the defence advised me that they had come to the conclusion that substantial further disclosure was required before they could proceed. [ 2 ] This week I heard a number of further motions, including a defence request for further disclosure and their challenge to certain proposed Crown evidence.

These are my reasons in respect of those applications. Voir Dire #4 – Further Disclosure

[3] The full context of this case, and the disclosure dispute which has arisen, is detailed in my previous disclosure ruling,reported at 2020 ABQB 716. In brief

summary, the police investigated the homicides with which Mr. Truong is charged as part of aseries of what they believe to be gang related murders committed by one of two rival factions against members or associates of the other. [4] In total, police identified seven shootings in 2015 and 2016 which they believed were related. These included the two eventsfor which Mr. Truong is presently on trial, one for which he was discharged at a preliminary inquiry, and fourth one on which he hasreceived full disclosure as the Crown originally sought to tender similar fact evidence from that incident at this trial. [5] Mr.

Truong does not have disclosure of the full police files from the first three homicides, which took place in 2015,approximately a year before the matters presently before the court. His counsel’s position is that they need to review these files in orderto ensure they give Mr Truong the fullest defence possible. [6] The defence relies heavily on the fact that the officer in charge of the combined umbrella investigation into these shootings,known as Operation Heart, swore an information to obtain a

Part VI authorization, in which he stated that he believed these seven crimeswere related, committed by a common group of individuals, in a common modality, and for similar reasons. [7] In a somewhat ironic counterpoint, the Crown’s prosecutorial approach is to make no mention of the broader context of theseoffences.

The Crown disavows any attempt to prove a motive, including anything gang-related, and has foresworn any foray into thecriminal organizations and rivalries potentially behind and beneath these events. [8] The defence argues however, that it is entitled to disclosure of the entire investigation, as it implicated and examined theirclient, may afford evidence of alternate suspects, and generally meets the “not clearly irrelevant” threshold for disclosure. [9] The Crown, resists disclosure arguing that these materials are irrelevant as the accused was not a suspect in those crimes,those investigations remain relatively nascent and, while still technically open, contain nothing that will be germane to this trial.

Governing legal principles [10] The accused’s right to disclosure is now a cornerstone of Canadian criminal law, stemming from the root principles expressedby the Supreme Court in R v Stinchcombe, [1991] 2 SCR 326. The scope of the right to disclosure is, at the first level, defined by theinstant police investigation. As the Supreme Court held in R v McNeil, 2009 SCC 3.

The police and Crown are obligated to disclose allrelevant materials in their possession pertaining to the investigation of the accused. [11] The second level of disclosure to which an accused person is entitled extends to all materials which may assist in themounting of a defence, challenging the Crown theory, advancing charter claims, and so forth, whether or not it relates to the theory ofthe prosecution.

There is an entitlement, under this second tier of disclosure, to materials which would not constitute first-instancedisclosure, and the relevance of which the Crown may not see or understand, but which the accused can show “is not clearly irrelevant”:R v Dixon, (SCC), 1998 1 SCR 244, R v Liepert, (SCC), 1997 1 SCR 281 at para 24 [12] Disclosure is always subject to the Crown’s overarching right and obligation to edit for relevance, privileges, and the publicinterest. Application of these principles [13] In this case, the police clearly believed that a related group of individuals, including Mr.

Truong at various stages, wasresponsible for this entire run of murderous violence. Closely reviewing the omnibus information to obtain filed in Operation Heartreveals extensive similarities between the crimes. The Crown points out that these earlier shootings involved some deviation from whatit alleges is the pattern that took place in the events now being tried.

That said, the thread of similarities runs back to the beginning inthis case. [14] Unlike many situations in which disclosure of large, collateral, and mostly unrelated files are sought, there are materiallinkages here between the case being tried and the materials to which the defence seeks access.

There is a potentially related andcommon thread of organized criminality, featuring a consistent and interrelated cast of players in which the accused features, significantsimilarities in the way the crimes were committed, a suggested common set of motives, as well as a degree of physical and temporalproximity. [15] While I believe that the overwhelming majority of material contained in the three earliest homicide files will be irrelevant, Icannot determine with certainty that all of it, is “clearly irrelevant”.

Unfortunately, I am not offered any way to order selectivedisclosure of that file which may make the task of disclosure more proportionate and manageable. [16] In many respects, my decision on this application is governed by the same considerations that drove my earlier ruling: namelythat it is not obvious that Mr. Truong will be unable to tease useful materials about who else may have committed these crimes, and hispotential lack of connection to them, from the material he seeks. [17] As I noted before, there is an inversion of the Crown defence positions at play here. The theory upon which Mr.

Truongseeks this disclosure is largely premised on an approach which may well introduce details of the organized crime element surroundingthese killings, whereas the Crown has tactically chosen to avoid that material. However, the Crown theory does not define the scope ofpotentially relevant disclosure. [18] Given what is at stake, the undeniable linkages between these crimes, irrespective of whether the Crown relies on thoselinkages in this trial, compel me to find that Mr. Truong should be afforded disclosure of the previous three homicides.

[19] I am mindful of the substantial amount of resources that will be required to fulfil this order. However, Mr. Truong hassatisfied me that he is entitled to this further disclosure. [20] The materials sought relates to outstanding homicide investigations in an organized crime context. The Crown retains thediscretion to the vet these materials, and request usage restrictions, in accordance with the public interest in those circumstances Voir Dire # 5 – vehicle identification evidence and visual aids [21] The defence seeks to challenge two proposed forms of Crown evidence.

First, it argues that police Constable ChristopherKirby should not be permitted to testify about his process of identifying certain vehicles captured in surveillance and security footage inthis case. Second, the defence objects to visual annotations, in the forms of circles and arrows, attached by a police analyst to apresentation of still images extracted from surveillance video. [22] I will deal with the vehicle identification evidence first. From the Crown’s proffer of evidence, I understand that it will seekto prove that a rental vehicle belonging to one of Mr.

Truong’s unindicted co-conspirators was seen near the victim’s home in relation toone of the shootings. I am further advised that DNA of a number of individuals, including Mr. Truong, was extracted from that vehicle. I am told that other evidence will tie those individuals together,. [23] The Crown will similarly attempt to prove that the vehicle it believes was the gunship in one of the shootings, which it willseek to prove Mr.

Truong purchased shortly before the event, was recorded in surveillance near one of the murder scenes. [24] In order to prove this facet of its case, the Crown proposes to call Constable Christopher Kirby. He is a police officer with akeen lifelong interest in, and considerable experience dealing with, motor vehicles.

From the materials on this application, I understandthat he has come to be a frequently consulted resource within the Calgary Police Service, and indeed has been utilized by other policeagencies, for his ability to identify specific makes, models, and year ranges of vehicles from images gathered in relation to ongoinginvestigations. [25] Constable Kirby’s process is to look at partial, obscured, or limited images of vehicles and use his knowledge to findappropriate comparator images from which he is then able to identify the make, model and year range of the vehicle depicted. [26] The nature of his evidence is that he takes images from which ordinary people would likely not be able to identify what kindof vehicle is shown, figures out what the vehicle is, and then explains what features of those images have led him to that conclusion. [27] The Crown proposes to call Constable Kirby to give lay recognition opinion evidence.

This is a form of evidence which theCourts have increasingly come to recognize as legitimate, both in identifying individuals and objects. [28] The defence objects that this is not proper expert evidence, and that the identification of these vehicles may be irrelevant. Analysis [29] The relevance objection raised by the defence, and pressed in oral argument as its principal ground for rejection of ConstableKirby’s evidence, may be simply dealt with. From the material thus far before me in this case, it is clear that identifying both of thevehicles in question is relevant to material issues in the trial.

The proximity of a rental vehicle in which the accused’s DNA was found tothe murder scenes at relevant times is probative of his potential involvement. Equally, it is the very heart of the Crown’s case that Mr.Truong purchased the vehicle which transported the killers to the scene of each crime. Therefore, evidence which is capable ofsupporting the finding that vehicles similar in type and appearance were seen proximate to the killing is self-evidently relevant. [30] The key question, therefore, is whether the form in which the Crown proposes to lead this vehicle identification evidence isproper.

I am satisfied that it is. [31] I start from the basic proposition that the identification of things relevant to a case, be they people, vehicles, clothing, or othergoods, often forms an important part of both civil and criminal cases. Parties are entitled to call evidence that assists in identifyingrelevant people and things, where the trier of fact is less able make these discernments unaided.

Evidence that permits such conclusionsto be drawn is both necessary and helpful. [32] Evidence of this nature does not meet, and is not meant to meet, the traditional Mohan criteria for expert opinion evidence: R vMohan, (SCC), [1994] 2 S.C.R. 9.

Rather, it takes the form of “lay opinion evidence”, in which individual factwitnesses, who are better situated to identify people or things, are permitted to testify for that purpose: see R v Lee, 2018 ONSC 377.Thisform of evidence was recognized as legitimate by the Supreme Court in R v Leaney, (SCC), [1989] 2 SCR 393. [33] The law in this area has developed to require two preconditions to admission of this kind of evidence.

These are that theproposed witness has a superior prior acquaintance with the subject matter of the identification and is in a better position than ordinarylay witnesses to provide the information at hand: R v Behre, 2012 ONCA 716. [34] In Behre, Justice Blair dealt with the admissibility of lay recognition evidence and said the following at paragraph 21: The “prior acquaintance” branch of the Leaney/Brown test enables the trial judge, on a voir dire, to sort out whether the potential witnessis sufficiently familiar with the person sought to be identified to have “some basis” for the opinion -- or "an articulated basis", as somehave said [See Note 1 below] -- and the "better position" branch ensures that the evidence will only be admitted if it is helpful to the trierof fact because the potential witness has some advantage that can shed light on the evidence in question.

[ 35 ] Lay opinion evidence on recognition has been extended to the identification of objects, in particular motor vehicles, both in R v Lee , cited above, and more recently in R v L , 2019 ONSC 7585 . I find both of these authorities helpful and follow them [ 36 ] The evidence in question here does not carry any of the risks typically associated with inappropriate expert evidence. The witness will ‘show his work’ to the trier of fact. He will explain why it is he believes the vehicles in question are of a particular make and model, and show the jury the comparators he used to reach that conclusion.

They will then be well-positioned to make up their own minds as to whether they accept this evidence or not, and what weight to give it. [ 37 ] This is not a case where opaque scientific endeavour, of potentially dubious legitimacy, underlies the substantive opinion. Rather, the proposed evidence is both overtly helpful and runs no risk of usurping the trier’s function, much less doing so on a questionable basis. [ 38 ] The defence will be entirely able to challenge this evidence, by directly questioning the comparisons Constable Kirby is using, or by calling similar evidence of its own.

There is no unfairness or prejudice wrought by the reception of this evidence. [ 39 ] For all these reasons, similar to my colleagues in the two aforementioned cases from the Ontario Superior Court, I find that Constable Kirby’s lay opinion evidence on vehicle identification is admissible. Demonstrative evidence annotations [ 40 ] The final area of dispute on this voir dire regards annotations placed on certain video captured still images that the Crown intends to lead. Surveillance video plays a significant

part in the Crown’s case. The police assembled and analysed video from many sources, including retail establishments and hotels. Police analysts went through these videos and identified images which they believe to be of relevance. These were then captured as still images and collated into a sequential presentation which seeks to convey that certain individuals were in certain places at certain times, and in particular instances carried specific items of relevance. [ 41 ] On some of these images, the police analyst has inserted red arrows or circles pointing to, or highlighting, certain facets of the image.

These do not appear on all of the images. On some pages of the presentation, a series of images are placed adjacent to one another with arrows pointing at features of clothing or items of luggage that are said to show the same thing in both images. [ 42 ] The defence objects to the inclusion of these annotations.

As I understand their submission, they characterize these annotations as a form of improper opinion being expressed about the evidence and its importance. [ 43 ] In argument, the defence conceded that the Crown would be entitled to make identical markings on these documents in the course of its submissions to the jury, highlighting what the Crown argues is relevant.

Effectively therefore, the question is whether these markings can go on the images prior to them being presented by the police analyst witness in evidence, or must wait to be added in the course of argument. [ 44 ] Not surprisingly, in the modern era the use of visual aids to present and synthesize complex and multifarious information for juries and other triers of fact has become more common.

Courts, therefore, have been called upon to consider the very question at hand in this case. [ 45 ] In R v Gough , 2017 ONSC 1407 , Justice Henderson considered the admissibility of a PowerPoint presentation prepared by the investigators in a homicide prosecution. As in the present instance, the investigators had viewed hundreds of hours of raw footage from CCTV footage and extracted the clips believed to be relevant to the case, including the form of still photographs.

While the challenge to the evidence in that case focused on whether the presentations of aggregated and curated images was admissible at all – which is not disputed before me – the Court was also asked to consider a defence objection to the use of circles that were inserted into the presentation to highlight particular facets of the identified excerpts. [ 46 ] In ruling that these markings were unobjectionable, the Court stated as follows at paras 28 and 30: In my view, the use of the circles is solely to identify the images referenced by [the investigator] in his testimony.

I find that the circles, or other annotations, would be helpful to the jurors in understanding and following [the investigators] testimony. Moreover, I find that the circles are not particularly prominent and are used infrequently throughout the PowerPoint presentations. For these reasons, I will not direct at the circles, or other annotations of the PowerPoint presentations be removed from the PowerPoint presentations. … In addition, I expect that that I may give a mid to trial instruction with respect to the circles are annotations of the PowerPoint presentations.

That mid-trial instruction would inform the jurors that the circles and her annotations are only present a system and follow the evidence the jurors should not place any extra importance on the portions of the PowerPoint presentations that are circled are annotated [ 47 ] I agree with this reasoning. It is inherent in all testimony from police investigators that they believe the items they present to the Court are relevant. Otherwise they would not be presenting them.

Pinpoint identification of that purported relevance is neither misleading nor prejudicial. [ 48 ] Evidence from an investigator that he or she believes an image is relevant because it shows a particular thing is not objectionable so long as the jury understands that it is for them to decide whether they accept what the police say is in the picture, and make their own evaluation of its significance within the facts as they find them. The effectiveness of the presentation of evidence is not a form of prejudice.

To the contrary, it enhances the truth-seeking function of the trial: see R v Kanagasivam , 2016 ONSC 2250 at paras 45-49 .

[ 49 ] A circle or arrow, which the jury expressly knows was inserted by an investigator, serves a useful purpose of focusing their attention on the evidence that is being presented, but does not carry any real risk of distorting their evaluation of that evidence.

Juries can tell the difference between the evidence in a photograph and a mark added by the investigator who prepared the presentation. [ 50 ] Subject to further submissions from the parties, I propose to give an instruction to the jury at the time this evidence is presented emphasizing that the decisions as to whether the source and authenticity of the photographs has been proven, what is seen in the photographs, and what it may mean, are entirely for them to make, and that the annotations added by the witness are purely as a visual aid to identify what is said to be relevant and are not evidence of anything. [ 51 ] Subject to that, the video analysis presentations are admissible and the application to expunge the investigators’ markings is dismissed.

Orally given on the 25 th day of February, 2021. Decision dated at the City of Calgary, Alberta this 29 th day of October, 2021. N. Devlin J.C.Q.B.A. Appearances: Brian Holtby for the Crown Robert Claus Derek Jugnauth for the Accused