Her Majesty the Queen - v. -, 2012 SKPC 63

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 063 Date: May 15, 2012 Information: 43963058 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Michael Emery Stewart Appearing: Michael Segu For the Crown Kim Armstrong For the Accused INTERIM RULING P.S. KOLENICK , J BACKGROUND [ 1 ] The accused is charged that, on or about August 8, 2011, at Saskatoon, he committed a robbery against Rosemary Anweiller of Esso (Imperial Oil) contrary to s. 344(1) (

b) of the Criminal Code .

[ 2 ] As part of its case the Crown called the complainant to testify. In addition to her evidence, the Crown requested a voir dire to determine the issue of whether the Court should find admissible the opinions of any or all of the three peace officers who testified. They had allegedly viewed photos made from a video disc of a surveillance video. Each had concluded it was the accused who had committed the alleged offence. [ 3 ] On the voir dire , Sergeant Ernie Louttit, Sergeant Rhonda Ellingboe and Constable Dione Meier, testified for the Crown. There was no evidence called for the accused.

The evidence in the voir dire was applied to the trial proper by consent. [ 4 ] Therefore the issue to be determined is as follows: Is the opinion of any or all of the peace officers that the person identified in the video surveillance material photos alleged to be the accused accepted by the Court to be at least admissible, without any consideration of weight? EVIDENCE FOR THE CROWN Rosemary Anweiller [ 5 ] Ms.

Anweiller advised that she was employed as a cashier at an outlet of Esso On the Run in Saskatoon when this matter allegedly occurred. [ 6 ] At roughly 8:20 p.m. she was alone in the store with one male customer, who was purchasing a slushy. She was in the process of making a safe drop, placing money in the safe from the cash register. The male was there as well and grabbed her by the hand. She backed off but he jumped behind the counter at the cash register and said words like “don’t fuck with me” and “give me the money”. He took $250.00. [ 7 ] She did as she was told for fear of being hurt.

She had been working alone at the time and the male suspect had also been by himself. [ 8 ] In her testimony she described him as being 5’6”, male native, caucasian, wearing a black hat, green jacket, black pants and sunglasses. He had also been carrying some nature of stick which was dropped by him near the coffee counter. She was not sure if he had anything in his hands when having entered the premises. He picked up the stick and took it with him. [ 9 ] Ms.

Anweiller confirmed as well that she had called the police on her cell phone because he had taken the cordless handset when having departed. [ 10 ] She also indicated that there was a video surveillance camera at the time and had reviewed that video with the police. It was entered as an exhibit for the Crown and played for her while she was on the witness stand.

She was able to confirm the actions of her male assailant, but could not identify the responsible party where he was apparently seated in the prisoner’s dock. [ 11 ] In addition to the video disc, the Crown also entered as an exhibit five still photos from the video disc. [ 12 ] There was no cross-examination of Ms. Anweiller. Sergeant Matthew Ward

[ 13 ] Sergeant Ward of the Saskatoon Police Service was involved in a general investigation on this alleged matter, starting the following day. He had not attended at the scene, but became aware from other officers of the video surveillance disc. As part of his duties the officer secured the disc for the technological officers of the Saskatoon Police Service. That resulted in five photos being circulated to various peace officers by e-mail. Seven officers replied, all of whom confirmed the assailant to have been the accused.

No other suspect was named by anyone. [ 14 ] Sergeant Ward also indicated that he had attempted a photo identification line-up procedure with the complainant. She was not able to positively identify the accused in the process. [ 15 ] In cross-examination the officer confirmed the photo line-up procedure had used nine photos including the accused. As well, he was unsure as to how many peace officers had been sent the photos of the assailant. Further, no fingerprints had been located at the scene, and he had not been involved in the arrest of the accused.

EVIDENCE OF THE VOIR DIRE [ 16 ] With the consent of counsel, a voir dire was convened at this point of the proceedings. As noted, the issue was to determine admissibility of the alleged opinion evidence by the peace officers. They had each concluded that the accused had been positively identified as the responsible party from their analyses of the photos at the scene and past contact with the accused. There was no Defence evidence on the voir dire . The parties agreed the evidence on the voir dire will be applied to the trial proper by consent.

The accused also reserved the possibility of calling evidence for the Defence, depending on the interim ruling herein on the voir dire . Sergeant Ernie Louttit [ 17 ] Sergeant Louttit of the Saskatoon Police Service advised that he has been a peace officer for 25 years. In the course of his duties he has made roughly 300 arrests per year. He was familiar with the accused in his professional capacity and purported to identify him where he was seated in the prisoner’s dock. [ 18 ] He knows the accused by his nickname “Doughboy” and has had occasion to arrest him on five occurrences since 2001.

That was in addition to the various other times over the years when he has been required to check the identification of him in the course of his duties. [ 19 ] On September 2, 2011, he had contacted Sergeant Ward to confirm that it was the accused in the photos that had been circulated. He had drawn that conclusion almost instantaneously. [ 20 ] In regard to photos 1, 2, 4, and 5 he concluded they had the familiar look of the shape of his mouth, side profile and body shape. He had noted as well the physical build and shape of the head. He observed the accused to be not too tall and built like a wrestler.

He could recall having wrestled with the accused during one of the arrests. He was one hundred percent confident of the identification, no doubt. [ 21 ] In cross-examination the officer agreed that photo 1 had been extremely dark and the head was covered by a hat and glasses. Despite that the officer was of the view that the shape of the head, mouth and face were sufficiently distinctive for these purposes. [ 22 ] In regard to photo 2, the side profile showed the ear, cheek and mouth. However the eyes and nose cannot be seen, nor can the shape of the nose.

As well there is some visual impediment caused by the hat and glasses.

[ 23 ] As to photo 3, the assailant is wearing a green shirt and blue pants. The whole face is not visible, just the chin. The officer agreed he could not read the logo on the cap nor the shirt. [ 24 ] It was agreed also that photo 4 shows better clarity with a side view of the face as he jumped over the counter. The face was squeezed somewhat as he jumped. There was a dark hat over his forehead. Regardless the officer confirmed he had been face to face with the accused when he was placed under arrest. [ 25 ] Photo 5 shows a person standing with a side profile where the ear only is visible.

The eyes are covered by the hat and it covers the face. [ 26 ] The officer indicated also that he had not attended at the scene. He claimed as well that the shape of the accused’s head was distinctive despite that he was wearing a cap in the photos. As well, though there was nothing distinctive in the photos, such as facial hair or tattoo, his appearance is embedded in the officer’s mind despite no distinguishing characteristics. Mostly he was looking at the nose, mouth and chin only. The officer did not consider it to be someone else. He cannot help if he recognizes somebody.

Sergeant Rhonda Ellingboe [ 27 ] Sergeant Ellingboe of the Saskatoon Police Service has been a member since December 1995 and identified the accused in the prisoner’s dock. Her first contact with the accused as a peace officer was in 1996. That contact was only for roughly 10 minutes. She knew his nickname to be “Doughboy”.

The only other contact she had with him was in 2003 when he had been arrested for operating a motor vehicle. [ 28 ] In regard to the photos in issue herein, when she first saw them she was uncertain as to the proper identity but very soon was able to put the name and face together as being the accused. She had regarded photo 1 straight on as being helpful to identify his nose, mouth and width of his cheeks. There was no problem in that regard that he had been wearing a hat. Photos 3 and 4 indicated the accused’s personal build and stockiness. Photo 5 confirmed he was dark-skinned.

The officer concluded she was ninety-five percent certain of his identity. [ 29 ] In cross-examination the officer agreed that the first contact had been 16 years ago. The incident was distinctive because some jewelry had fallen out of a sock in the course of an investigation. She had contact with him face to face from a distance of roughly 12 feet when filling out the booking sheet in detention. [ 30 ] In respect to the matter in 2003, again she agreed it was 9 years ago which is a significant period.

He had produced his driver’s license in the course of being detained and placed under arrest. [ 31 ] As regards photo 1, she agreed to being unable to read the logo on his hat, which had the effect of covering his forehead, glasses and eyes. He might have had a moustache. Even though it was not the best photo, she was aware of the distinctive line of his mouth, nose, jaw and lips. She did not rely on photo 2 because it was too blurry. [ 32 ] With respect to photo 3 she agreed that the full body dark hat stopped her from seeing his eyes, however his stature and size were important.

He appeared to be stout and stocky. Also apparent in photo 3 were the accused’s distinctive smile lines. Photo 5 only included his nose and ear. It was not possible to see any lines on his face. She agreed as well that there did not appear to be any piercings. Constable Dione Meier [ 33 ] Constable Meier has been a peace officer for three years. She, too, purported to identify the accused where he sat in the

prisoner’s dock. As children they had lived in the same neighbourhood. She is now age 30, and had attended the same elementaryschool, W.P. Bate, from kindergarten to grade 6 for seven years, as did the accused, he a grade ahead. They were not in the same grade. They went to different high schools, but she purported to have no problem confirming his identity.

Even though they did not go to highschool together she still had some contact with him because they were in the same neighbourhood. [34] The last contact which the officer had with the accused was August 11, 2011, when he attended at detention and she wasworking there. She knew who he was. He started the dialogue by saying “you’re Dione Meier”. She confirmed that indeed she was. Their encounter at detention was for 2 or 3 minutes. [35] In respect to the photos in issue, photo 1 showed the accused’s distinctive smaller button nose which protrudes somewhat, inhis heart-shaped face.

Photo 2 included cheekbones which are very high and smaller ears. In photo 3, the accused, who was 5’8”, wasinclined to carry his arms somewhat out to the side. It also indicated a thicker mid-section and broader shoulders. It also suggested thatthe photo 4 cheek lines between the cheeks and mouth to be distinct, as well as caramel-coloured skin tones. Once again, photo 5purported to show a body build and height consistent with that of the accused. [36] He had been known as “Doughboy” as a nickname when they were younger.

She noted in court that the accused has a smallbutton nose, full lips, a nose that does not protrude, caramel skin tones and distinct smile lines. His jaunty walk on the video was thesame as the accused holding his arms out to the side somewhat as he walked. In general she was very confident the accused had beenproperly identified as the offender.

She confirmed that opinion from both the photos and the portion of the video disc which was playedfor her in court. [37] In cross-examination the officer confirmed that she had not looked at the photos for more than five minutes as well there hadbeen a 12 year gap since high school graduation and longer since they had been in the same elementary school. There had been brief andfleeting contact for many years, but they had not been friends. [38] Regarding photo 1, she agreed that it was not possible to see his eyes with the dark hat and that she could not see the hat logo.

As to photo 2, the glasses appeared to stick out from the dark hat. The side profile is from the left and she was unsure if there was anyfacial hair. As well it was not possible to see a forehead because of the hat. As to photo 5, again the officer said that the accused wascarrying his arms to the side and slightly out from his body. She also claimed in photo 4 to see his distinct facial lines despite that he wasjumping over the counter, as well as the accused’s caramel coloured skin tones. In photo 5, the accused was seen to have a similar buildin height to when he was in high school.

ANALYSIS Is the opinion of any or all of the peace officers that the person identified on the video surveillance material photos alleged to be theaccused accepted by the Court as being at least admissible without any consideration of weight? [39] The accused filed the following judgments, which were greatly appreciated. They reflect a statement of general principles andwere used by the Crown to some extent as well: R. v. Leaney, (SCC), [1989] 6 W.W.R. 332 (S.C.C.), and in the AlbertaCourt of Appeal: 1987 ABCA 206, R. v. Anderson, 2005 BCSC 1346 (BC Sup. Ct., Smith J.). [40] However, the Court noted as well R. v.

Knife (F.J.), 2011 SKQB 443 (Popescul J. as he was then) which I had located. Indealing with this issue in the content of the circumstances therein, the Court noted commencing at para. 1: (orally) 1 The accused, Frederick Junior Knife, is charged with assaulting Darren Demeria and Murray Dorion, arising out of an incident thattook place on September 1, 2008, at the Saskatchewan Penitentiary at Prince Albert, Saskatchewan. At all relevant times, the accusedand the two victims were federal inmates. The alleged assaults have been captured by surveillance video.

2 The accused has elected to be tried by a court composed of a judge and jury. That trial is scheduled to take place on March 7,2011. One of the issues at the upcoming trial will be the identification of the accused and his associated actions which the Crowncontends can be seen on the video recordings. The Crown wishes to admit the video recordings as evidence and also seeks to leadevidence from a corrections officer familiar with the accused, who purportedly is able to identify the accused as one of the perpetratorsof the assaults.

This type of evidence, often referred to as "recognition evidence", is evidence provided by a non-expert witness who isable to identify an individual from images on a video recording rather than from direct observation. 3 A voir dire has been conducted in order to consider the admissibility of both the video recordings and the recognition evidence.This is my ruling on the issues raised in the voir dire. 4 I will firstly deal with the admissibility of the video recordings themselves. The Supreme Court of Canada in R. v.

Nikolovski, (SCC), [1996] 3 S.C.R. 1197, has held that a video recording can be admitted at trial as an "objective silent witness" ifthe video is of good quality and gives a clear picture of the events and the perpetrator. . . . 8 I now will address the issue of the admissibility of the proposed recognition evidence. The criteria for admitting recognitionevidence of a non-expert witness has been discussed in a number of decisions including R. v. Leaney, (SCC), [1989] 2S.C.R. 393; R. v. Anderson, 2005 BCSC 1346, [2005] B.C.J. No. 3053 (QL); R. v. P.T.C., 2000 BCSC 342, [2000] B.C.J. No. 446 (QL);R. v.

Olivera, 2002 BCPC 379, [2002] B.C.J. No. 2157 (QL), and R. v. Sinclair, 2009 SKPC 74, [2009] S.J. No. 448 (QL). 9 Essentially, recognition evidence is opinion evidence as to the identity of the accused that is most often based on a witness’ pastassociation with the accused. The witness’ familiarity with the accused, based on his past association with him, permits the witness torecognize the individual in the images as that of the accused.

Essentially, therefore, the threshold level for admissibility of recognitionevidence involves that of a helpful witness who is in a better position than the trier of fact to identify the accused. 10 A number of basic principles establishing the criteria for threshold admissibility have emerged from the decisions just mentioned.The relevant assessment factors include: (

i) the length of the prior relationship between the witness and the accused; (ii) the circumstances of the prior relationship between the witness and the accused and; (iii) the recency of the contact between the witness and the accused prior to the event where the witness recognized the accused. . . . 17 Accordingly, I conclude that the Crown has satisfied the threshold test for admissibility of recognition evidence and find that theevidence concerning the identity of the individuals sought to be introduced at the trial is admissible. CONCLUSION [41] There are, of course, a variety of scenarios involved in the accused and his past alleged association with the peace officers

who testified in the voir dire . However, all three have sufficient lengths, circumstances and recency for the threshold admissibility of that evidence for these limited purposes, where weight is not a consideration. [ 42 ] Sergeant Louttit has 25 years experience as a peace officer and makes roughly 300 arrests per year. He knows the accused as “Doughboy” and has arrested him on five occasions since 2001 as well as, various other identification checks over the years. [ 43 ] Sergeant Ellingboe has been a peace officer since 1995.

She knows him as “Doughboy” and had her first professional contact in 1996, for roughly ten minutes. She had no more association with the accused until 2003 when he was placed under arrest for operating a motor vehicle. [ 44 ] Constable Meier has three years experience as a peace officer and knows the accused as “Doughboy”. She is now 30 years old and had attended the same elementary school for seven years with the accused, he a grade ahead. They had lived in the same neighbourhood.

On August 11, 2011, the accused had initiated dialogue with her while they were both in the detention area of the Police Services Building. He asked her if she was Dione Meier, which received a response in the affirmative. [ 45 ] All of these factors for the three peace officers fit the threshold of admissibility even though they comprise different particulars. As well there is no suggestion that they colluded, conspired or compared their respective version of events. ______________________ P.S. Kolenick, J