R. v. Kovlaske, 2019 BCPC 333

Citation: R. v. Kovlaske 2019 BCPC 333 Date: 20191029 File No: 62810-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. EDMUND PAUL KOVLASKE RULING ON VOIR DIRE OF THE HONOURABLE JUDGE K. ARTHUR-LEUNG Counsel for the Crown: A. Toljanich Counsel for the Defendant: S. Head Place of Hearing: Richmond , B.C. Dates of Hearing: October 10 and 11, 2019 Date of Judgment: October 29, 2019 Corrigenda were released by the Court on December 9, 2019 and January 7, 2020.

The corrections have been made to the text and the Corrigenda are appended to this document. [ 1 ] It is alleged that Edmund Paul Kovlaske, on or about the 14 day of September, 2018, at or near Richmond, British Columbia, did falsely represent himself to be a peace officer by representing himself to an electric bicycle shop proprietor as an RCMP officer while shopping for an electronic bicycle, contrary to Section 139(1) (

a) of the Criminal Code . Mr. Kovlaske has entered a plea of not guilty. This is my Ruling on Voir Dire 1 as to the admissibility. Recognition evidence is at issue. [ 2 ] The court heard testimony from RCMP Officer Mushi, who has been a peace officer with the RCMP since January 2009, with

his entire postings at the detachment located in Richmond, British Columbia. By way of background, the first 4.5 years of his policing career was in general duties, thereafter for 1.5 years he was part of an investigative support team for serious crimes, and for the past 5 years has been posted to the Property Crime Unit. He was so with the Property Crime Unit in September 2018. [ 3 ] His first involvement with the matter currently before this Court was on September 25, 2018 when he received an email from RCMP Officer Goguen, which is Exhibit 6 in the trial proper.

The email is dated September 22, 2018, with the heading “Richmond Help Identify”. Exhibit 6 is two pages, the first being the email wherein Officer Goguen is seeking assistance to identify the person photographed and is a Request for Information with two enhanced images of a male. Officer Mushi testified that the email came with an attached pdf of two images, a file number, the title of the file and contact information. He reviewed it at 11:10 a.m. on September 25, 2018, explaining that his delay in reviewing it was because he was on days off.

He testified that he believed that he recognized the person in those images; however, to be sure, he wanted to obtain the video surveillance, so located it in exhibits, signed it out and watched the DVD of two videos and three files at 11:45 a.m. on the same date. He stated that, for him, this is his best practice for recognition evidence. Prior to such, he testified that he passed Officer Goguen in passing while at the detachment who told him that there was a person impersonating a peace officer and that he would be sending the file to all for identification purposes to assist.

In terms of his procedure, Officer Mushi testified that he reviewed the first image, then the second image. He immediately identified the jacket being worn on the man as being an RCMP officer jacket and upon reviewing the images and the videos, concluded that it was the accused.

He testified that this is his best practice for recognition evidence and he wanted to ensure that those steps were taken before telling Officer Goguen that he could identify the person as being the accused specifically. [ 4 ] Specifically referring to his observations of the video, he testified that he viewed it at 11:45 a.m., which the dash cam video footage was showing the same location and business premise from the Help Bulletin.

He testified that he recognized the person in the videos as being the same person in the stills, wearing the same clothing, that the man walked outside around two bikes and that the movement on the video assisted him because it provided multiple angles and frames, making the clothing clearer and facial features clearer for recognition. The videos were clear for him, again, identifying the RCMP jacket by colour, patch and placement of the patches and that the back of the jacket had the florescent yellow patch on the back of the RCMP issue patrol jacket.

He was issued the identical patrol jacket and forage cap when he became a member of the RCMP. Based on the totality of such, he was completely satisfied in terms of recognizing the person. [ 5 ] He described the jacket, in both the videos and the still images, as being an RCMP blue jacket worn in the course of patrol and that the person in the video and stills was carrying on his person an RCMP forage cap, meaning the hat with the yellow or gold band on the exterior cap and the RCMP logo on the front.

Upon reviewing such, he immediately recalled his conversation in passing with Officer Goguen. [ 6 ] More specifically, he testified that in the first image, he observed an RCMP patch on the right arm shoulder of the blue jacket being worn by the person, that on the upper right portion of the front chest of the same jacket was a yellow Velcro patch that is florescent and can be zipped into a pocket.

This jacket is used in the course of patrol duties, and he testified was consistent with an official RCMP jacket. [ 7 ] For the second image, he testified that he observed the RCMP Velcro patch and that the male in his right hand was carrying an RCMP forage cap, bearing the yellow band and the yellow colouring inside the cap, which is an official RCMP cap.

He was issued both a patrol jacket and forage cap himself and was able to readily identify both the jacket and the cap. [ 8 ] After reviewing such and further looking at the profile of the male and reviewing the front of his face, considering and looking at the head shape, that the male appeared to be with a shaved head or no hair, and the facial features, he concluded based on the totality that he identified the male as being the accused. [ 9 ] The Officer was candid and admitted that the person was wearing sunglasses, but was unwavering that this only partially blocked the eyebrows and the upper cheekbones. [ 10 ] He testified that the shape of the male’s mouth in both the still and video is not as clear as seeing someone in person, but again was firm that he was still able to determine and observe it all and make a recognition based on the totality in relation to all of the other facial features.

The viewing of the video further assisted him in terms of visual clarity and as it was video, it allowed him to view facial features such as the jaw angle both on a partial and full view.

He testified that in observing the videos that the male was the same distance throughout and that this too added to clarity for him in focussing on his movement on the left and right sides and full front view, thus adding to what he remained firm was a total determination in arriving at his conclusion. [ 11 ] He acknowledged that the still and video show a mark on the head of the male depicted and that he did not make a particular note of such in his notes. He acknowledged the importance of notes, taking contemporaneous notes and accurate notes. However, he was unshaken in his testimony.

He testified that upon the arrest of the accused, that he physically went and observed him in the cells where he remembered that he made the deliberate effort to look for a mark on the right side of the head, and that he saw such on the right side of the accused’s head above his right ear and towards the front. He was satisfied that this mark, based on both the general physical location in both the image and the videos, further solidified his recognition of the accused.

He admitted that the mark on the head of the male in the pictures and videos is darker than what he observed on the accused in cells. [ 12 ] Officer Mushi was asked how he identified the person being sought for identification in the Help Bulletin as specifically being the accused, and his testimony was strong in that he stated it was based on the totality of factors, that viewing the video images made his observations even clearer, including allowing observation of that person at multiple angles and the totality of the facial features.

He was completely satisfied and unshaken in identifying the person as being the accused. He noted the mark on the right side of the head, which he said stood out in the images and became clearer on the video. In viewing the video, he testified that he constantly paused and observed frame-by-frame and that he viewed each video two to three times. He was satisfied with the still images as to recognition, but that his best practice methodology was to also view the videos, and he remained completely satisfied in identifying the person as the accused.

In arriving at such conclusion, he knew that the accused was bound by conditions at that time, including not to be in Richmond so he took the step of contacting the accused’s Probation Officer who confirmed that restriction still being in place, and thereafter told

his supervisor and he let Officer Goguen know as well. [ 13 ] He was asked what his basis was in identifying the person in the Help Bulletin as being the accused, and in unshaken detail, Officer Mushi testified about all of the historical interactions that he has had with the accused. • On August 29, 2012, he read the accused’s name and observed his mug shot.

He was asked to assist in executing a warrant and he was familiar with the file at the time. • On December 4, 2014, while assigned to the Property Crime Unit, he was on duty for surveillance of a house on Kingsley Crescent, in Richmond, British Columbia, and he parked his cruiser near this house that he knew was frequented by property offenders. He observed the accused leave the house, go back into the house and, thereafter, exit wearing different clothing and while outside was by a stolen vehicle. His total observation period was approximately 15 minutes and he was within 10 – 20 metres of the accused.

His observations were during the day, it was cloudy and he had no visual obstructions. He knew the identification of the accused by the mug shot that he had seen and that at this time he was with other officers who had interacted with the accused in the past and told him that this person was the accused.

The target sheet for the December 4, 2014 surveillance was for the accused and on that date he was satisfied that he observed the accused. • On January 8, 2015, he knew that the accused had outstanding warrants and was arrestable on new allegations, so he conducted surveillance on the same home as he had done on December 4, 2014, again during the middle of the day, and it was cloudy and his view was not obstructed.

He observed the accused leave the home alone; that he pulled the hood up on the hoody upon exiting the home; that he identified the accused; and that Officer Mushi left his vehicle and immediately went over to Mr. Kovlaske in order to surprise him; and in doing so, Mr. Kovlaske looked directly at him and ran on foot and the Officer chased after him and arrested him. Officer Mushi and Mr. Kovlaske interacted at the scene and he spoke with Mr. Kovlaske. Upon arrival at the detachment, he was in the observation room when Mr. Kovlaske provided a warned statement and observed Mr. Kovlaske during a live feed.

After that, Mr. Kovlaske asked for a cigarette, so he spent 5 – 10 minutes at the bay doors with Mr. Kovlaske talking about something outside of the arrest, that upon return to his cell Mr. Kovlaske became agitated at another police officer and made threats, with Officer Mushi recalling that Mr. Kovlaske’s face was red and angry and thereafter he was left alone.

The total amount of time on such day from arrest and cell was approximately three hours. • On June 18, 2015, there was an alleged break and enter that had occurred and he saw a bulletin seeking assistance for identification of the person and he was able to identify the suspect as being Mr. Kovlaske. Officer Mushi went to a recovery house where Mr. Kovlaske was to be residing, that his RCMP partner phoned Mr. Kovlaske to exit the recovery house and that Officer Mushi testified that he observed Mr. Kovlaske run out of the recovery house without a shirt on and running away from Officer Mushi and his partner.

He ran to Mr. Kovlaske and arrested him, placed him in the back of his marked cruiser and transported him from Surrey to Richmond, fingerprinted Mr. Kovlaske and lodged him in cells. The total amount of time interacting with Mr. Kovlaske on this date was approximately 1.5 hours. • In January 2017, the Officer and his team were conducting surveillance at the Richmond Centre Mall when he observed Mr. Kovlaske carrying bags, and the Officer specifically testified that at the time he found the observation of Mr. Kovlaske notable to him because he had not seen him in some time and he knew that Mr.

Kovlaske had conditions, one of which was not to be found inside a motor vehicle. So he followed Mr. Kovlaske and observed him entering a taxi. The total amount of time in this observation was approximately 5 minutes. • His next observation of Mr. Kovlaske was in October 2017. In leading up to such, he was aware that Mr. Kovlaske was bound by certain conditions including not to be inside a motor vehicle and not to leave his residence on Browngate Road in Richmond, British Columbia. He knew the registered owner of the GMC truck.

He observed this truck parked near a residence on Ash Street, which he said was a known residence frequented by property offenders. He believed that he observed Mr. Kovlaske operated the truck and when asked why, he testified it was because it was at this residence that was known to be frequented by property offenders and he believed that he observed Mr. Kovlaske drive the truck. His team conducted surveillance. During the evening, he saw the truck leave, he followed the truck and drove parallel to this vehicle and he made observations of the driver of the truck and found him to be Mr.

Kovlaske, who was operating the truck and holding a cellular phone on the left side of his face. Believing that Mr. Kovlaske still resided at the residence on Browngate, he drove further ahead and parked near the Browngate residence and parked, which the rest of his team continued to follow Mr. Kovlaske. The truck being operated by Mr. Kovlaske parked at the residence; he observed Mr. Kovlaske exit; Officer Mushi called out Mr. Kovlaske’s name; Mr. Kovlaske looked at Officer Mushi who was wearing his police issued vest; he ran towards Mr. Kovlaske identifying himself and Mr.

Kovlaske was startled and in doing so he threw the keys and his cellular phone away. Officer Mushi handcuffed him, spending approximately 15 – 20 minutes on the scene with Mr. Kovlaske, that he was transported back to the detachment, where he photographed and fingerprinted him and lodged him in cells. The total amount of time spent with Mr. Kovlaske was approximately 1.5 hours. Exhibit A on this voir dire was the prisoner report with photograph that was prepared by Officer Mushi. • In August 2018, Officer Mushi testified that he knew that Mr.

Kovlaske was bound by conditions not to be in Richmond, save and except for attending court, for work, or with the prior permission of his probation officer. The Officer was in his police cruiser, he pulled over at an alcove located outside of the mall between Cactus Club and Tim Horton’s just south of Cook Road and observed Mr. Kovlaske. The Officer immediately identified Mr. Kovlaske and observed him proceed south by Tim Horton’s where he lost visual contact of him. He later followed up with mall security for video footage and his bail supervisor told Officer Mushi that Mr.

Kovlaske did not have permission to be in Richmond on that day. Officer Mushi said that this observation was approximately 5 minutes and he had a clear line of sight from a distance of 7 – 10 metres. • On September 12, 2018, the Officer testified that he was on duty and drove past a residence known to be frequented by property offenders, being the same address on Ash Street as to his prior interaction with Mr. Kovlaske, and he observed Mr. Kovlaske outside of that residence and observed him enter a taxi. The total observation period was approximately 2 minutes. On such date, he knew that Mr.

Kovlaske was bound by conditions, that he was approximately 5 – 15 metres away, that Mr. Kovlaske was observed standing outside of this residence.

[ 14 ] Officer Mushi described Mr. Kovlaske as being approximately 5 foot 7 inches to 5 foot 9 inches in height, muscular build, approximately 200 pounds, his head is mostly shaven, he has flame and skull tattoos on his arms, he is Caucasian, has blue eyes and grey hair. [ 15 ] Based on his historical interactions with Mr. Kovlaske, he testified that observing him that he is still able to identify Mr. Kovlaske based on the totality of observing him at multiple angles, his facial features, the position of those features, and that his head shape is square in relation to the rest of his body.

From his first recognition of Mr. Kovlaske in 2012 up to 2018, Officer Mushi testified that Mr. Kovlaske is now less muscular, older and that his age now shows in his appearance, including wrinkles and more grey hair. [ 16 ] Identification of Mr. Kovlaske was made in court by Officer Mushi, noting that on the day of his testimony that Mr. Kovlaske had more hair on his head. [ 17 ] Officer Mushi was questioned further about his observations on September 25, 2018, wherein based on his certainty, that he identified the male in the Help Identify bulletin as being Mr.

Kovlaske; that he suggested to his supervisor that he be the lead investigator because Officer Goguen was on days off and that there was urgency to the matter in order to secure Mr. Kovlaske and to get the RCMP jacket and forage cap out of circulation. He spent September 25 and 26, 2018, preparing a search warrant, however, it was determined that there was insufficient evidence. Mr. Kovlaske was arrested on September 27, 2018, at his probation officer’s office in Delta. Mr. Kovlaske was transported to Richmond cells where Officer Mushi went to specifically speak to Mr.

Kovlaske and to see if there was a scar or mark visible on the right side of his head, and he testified that on such date, that the mark was not as visible but could still be seen and was more of a healing scar in the same area as the Help Bulletin, which is the right side of the head aligned close to the right ear but closer to the front of that side of the head. He observed Mr. Kovlaske’s hair to be that of little growth, but it was not dense and his scalp was visible. Mr.

Kovlaske was processed by other officers at the detachment. [ 18 ] Officer Mushi prepared the Report to Crown Counsel (“RTCC”) and acknowledged that he did not note his observation of the mark on the right side of the head and only did so just before this trial in a Supplemental RTCC. Exhibit B on this voir dire was the photo taken on September 27, 2018, wherein Officer Mushi highlighted where he said the scar was on Mr.

Kovlaske’s head. [ 19 ] In the course of this voir dire , a number of exhibits were entered including Exhibit C which was the CD disk from Officer Goguen; Exhibit D was the original disk from the forensic department containing three videos and all still images; Exhibit E was the compressed data from the forensics; and notably, Exhibit F (now Exhibit 5 in the trial proper), was a booklet containing 55 still images, including four, thereafter enhancing and zooming in on the person. [ 20 ] He testified that prior to Mr. Kovlaske being identified, that he had never observed or heard of anyone observing Mr.

Kovlaske wearing an RCMP uniform, that no one prior to his recognition suggested to him that it was Mr. Kovlaske. [ 21 ] He was firm and sure that he recognized Mr. Kovlaske based on the shape of his head, his body size, his height, his facial features and placement of those features, his shaved head, and his historical in person interactions and observations with Mr.

Kovlaske. [ 22 ] On cross-examination, Officer Mushi acknowledged that he has been trained to take accurate notes of his observations and that the RTCC should be as accurate as possible and prepared as soon after an event occurring, subject to time permitting. He acknowledged that he reviewed his notes before testifying. He acknowledged that notes assist for accuracy.

In preparing for trial, he testified that he reviewed the file including the narrative, his notes, the Help Bulletin images, and some of the video but he had issues playing it as he has since changed laptops twice since the alleged offence. [ 23 ] He acknowledged on cross-examination that Mr.

Kovlaske was arrested on September 27, 2018, and that he drafted the RTCC on September 27, 2018. [ 24 ] When asked about his memory and recollections, he agreed that since being a peace officer in 2009 that he has arrested and interacted with many people and, that on average in one week, he can interact with 2 – 24 people in the course of and depending on his duties.

He testified that in an average year that he arrests approximately 50 people, depending on his duties and that the majority are men and Caucasian, particularly as it relates to property offences. [ 25 ] He was asked about his observations in 2018 at the Richmond Centre Mall, wherein he repeated that he was in his cruiser. He pulled over and stopped. He observed Mr. Kovlaske in the alcove in the mid-afternoon. Mr. Kovlaske was wearing a white short-sleeve shirt and grey pants. The observation was approximately 5 minutes, and that while observing Mr.

Kovlaske, the officer was on the phone to confirm conditions and was typing on his computer. He was on the computer to verify conditions in the course of about one minute, and when defence counsel endeavoured to convince him that he was distracted, Officer Mushi was strong and unshaken, testifying that he types with one hand, and can do so without looking at the screen. While typing, he continued to observe Mr. Kovlaske, thus ensuring that he did not break his visual observation of Mr. Kovlaske. He did not obtain the conditions that bound Mr. Kovlaske at the time because the conditions were confusing.

He also was on the phone, but his hand was not distracted, and the phone was held by his shoulder. He maintained an unobstructed view of Mr. Kovlaske. He confirmed that there was no other person confirming on this date that Officer Mushi observed Mr. Kovlaske. Arising from such observation, he testified that he prepared a breach allegation to Crown. [ 26 ] On September 12, 2018, he testified once again that he drove by a known residence for property offenders and that in doing so he passed by Mr. Kovlaske, so he continued to drive past the known home, parked and continued to observe Mr.

Kovlaske for approximately two minutes. In driving past Mr. Kovlaske, he was operating his police vehicle at approximately 20 km per hour in order to permit him to take in his observations, including the vehicles, and being able to identify Mr. Kovlaske. He testified that it is not uncommon in a residential area to drive slowly and that in doing so, his ultimate goal was to observe the cars at this residence but instead he observed and identified Mr. Kovlaske and his attention was focused on Mr.

Kovlaske. [ 27 ] In the course of viewing the video of September 2018, he testified on cross that he took notes, including on September 25, 2018 at 8:00 a.m., team meeting; 8:50 a.m., conclusion of team meeting; 11:10 a.m., this file number about a suspicious person. Further that, his notes therein were detailed about the clothes the person in the stills and video was wearing which included a navy RCMP patrol jacket with the shoulder patch, the yellow chest patch and that the person was holding an RCMP issue forage cap. He agreed that he

made no notes about the mannerisms of the person, of the gait of the person or of the jaw line of the person, but remained unshaken oncross-examination that he was sure that he had identified Mr. Kovlaske. [28] When pressed further, he agreed that there is a lack of detail about recognition in both his notes and the RTCC as to similaritiesbetween Mr. Kovlaske and the person observed outside of the bike shop. However, he countered such and in acknowledging thisinadvertent omission, he testified that his narrative included his historical interactions with Mr.

Kovlaske and the length of each of thoseinteractions and proximity in time to this alleged offence. He testified that this was detailed and that his recollection about Mr. Kovlaskeis always present and does not go away because of the number of encounters that he has had with Mr. Kovlaske and that he alwaysmaintains a good memory of Mr. Kovlaske and his recognition. He testified that simply because he omitted some particulars in his notesthat does not mean that his recognition of Mr. Kovlaske is not in his mind and his memory.

He testified that based on the combination ofall of his memories of his interactions with Mr. Kovlaske that he was able to recognize Mr. Kovlaske. [29] He did not interview the storeowner, Mr. Nguyen, and thus was unable to verify any bruises, including the size and location. Hedid not show Mr. Nguyen either the still images or the video. [30] He confirmed that he observed the mug shot being taken of the accused at the time of processing from his arrest and viewed theimage on that very day. [31] Exhibit B in this voir dire is the booking photo taken on September 29, 2018.

He agreed that it is difficult to see the mark on theright side of the head, but again, he was firm and unshaken in his testimony pointing out in specific detail the slight discolouration with asmall vertical patch of hair, which he said was consistent with his physical observations. [32] On cross-examination, Officer Mushi testified that in his experience that cuts will often heal darker than scabs, and then theskin becomes lighter in tone in the healing process. [33] He acknowledged that the complainant’s statement says that he observed a bruise and not a cut, however, said that English isnot Mr.

Nguyen’s first language and that there may be some translation concerns with his observations. [34] He testified that the 2015 mug shot of Mr. Kovlaske was not what he observed in 2018 and that the mark on the side of his headin 2018 was larger, semi-circular and consistent with both the observed stills and videos. [35] He agreed on cross-examination that his notes made no mention of him seeing Mr. Kovlaske in cells on September 27, 2018,that there is no mention of such in his RTCC, and that there is no mention of the mark.

He agreed that the mark on the side of the head isrelevant, and said that it was an oversight on his part, but that he was in the course of being eagerly preparing his report, and that he wascompletely satisfied on his recognition of Mr. Kovlaske based on the number of interactions he has had with him, and the clarity of thevideo itself for him was more than sufficient to assist him for charge recommendations.

He was again pressed on cross-examinationabout the RTCC and, again, he repeated that it was an oversight on his part not to insert his observations about the mark on the head andwas not a specific choice to do so on his part. He testified that it was not important in going to cells and that his purpose was simply tocontinuously refresh his observations of Mr. Kovlaske moving forward so that as an officer he could stay current in his ability to identifyand recognize Mr.

Kovlaske; and, that in doing so, the mark was not relevant to him in the totality of the circumstances and while headmitted that now 13 months later, that the mark was relevant, he again said it was an oversight on his part. It was only in the course ofpreparing for this trial that he realized and his memory was jogged by the video about the mark on the side of the head and as he is theparty who recognized and identified Mr.

Kovlaske did he realize it and that he observed that mark at the time in September 2018. [36] Officer Mushi was candid and forthright on cross-examination, admitting that all of his reports are not always perfect and thatthere can be shortcomings, but he remained firm and unwavering that based on the totality of his interactions with Mr. Kovlaske, in thecourse of his policing career and the video, that he recognized that the person was Mr. Kovlaske. [37] On re-direct, he identified Mr.

Kovlaske on September 25, 2018; prepared his RTCC on September 27, 2018 and that thechange from the arrest to the RTCC included details from Officer Goguen to his narrative and no other changes. [38] He was asked again about the identifying mark on the side of the head and agreed that it was as defence counsel asked him tobe a “defining” feature, but he denied that the mark was for him to be a “defining” feature and that it did not add any weight to hisconclusion that he had identified Mr. Kovlaske and that is why he did not at the time believe the mark on the side of the head to beimportant.

Again, he was unwavering and firm that his recognition of Mr. Kovlaske was based on the totality of his observations of Mr.Kovlaske and his defining facial features. [39] The sole issue within this voir dire is that of recognition identification. [40] As articulated in the case of R. v. Field, 2018 BCCA 253, the British Columbia Court of Appeal noted that there are at leastthree distinct types of identification evidence that may be tendered, each with their own distinctive relatability characteristics.

That iseyewitness evidence by a stranger, identification by the trier of fact through photographic evidence, and in the matter before me,recognition evidence which is based on the decision of R. v. Leaney, (SCC), [1989] 2 SCR 393. In considering theprinciples and requirements of recognition evidence, this Court must determine if the testimony of Officer Mushi is to be admitted for thepurposes of recognition evidence.

The Leaney, (supra), decision was carefully considered and applied in the Field, (supra), decision,notably at paragraph 23, wherein the Court noted that recognition evidence means that: “[t]his evidence is admissible if the witness had aprior acquaintance with the accused and is therefore in a better position than the trier of fact to conclude whether the individual in thephoto is the accused”. [41] The Field, (supra), decision applied the decision of R. v. Anderson et al, 2005 BCSC 1346, wherein at paragraphs 20 and 25 ofthat decision, Madam Justice D.

Smith stated: [20] … [T]he threshold level for admissibility of recognition evidence is that of a helpful witness, who is in a better position than that ofthe trier of fact to identify the accused. The issue then becomes what degree of familiarity is needed in order to meet the threshold level

for admissibility. [25] ...the indicia for determining whether the threshold degree of familiarity for the reception of recognition evidence has been met isthreefold: 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 theaccused… I concur with Crown counsel submission it is not a high threshold in order to meet the degree of familiarity.

The voir dire process acts asthe proper gatekeeper to determine admissibility. [42] In seeking to convince this Court that that admissibility threshold for recognition has not been met, defence counsel respectfullyalso relies upon the Field, (supra), decision wherein the Court noted the decision of R. v.Panghali, 2010 BCSC 1710 and notably atparagraph 42, where the British Columbia Court of Appeal held: Common experience teaches that people have vastly different abilities to identify and articulate the particular features of the people intheir lives that they know, recognize, and distinguish on a regular basis.

Where a witness has but little acquaintanceship with the accusedhis or her recognition evidence may be of little value unless the witness can explain its basis in some considerable detail.

But at theother end of the spectrum, the bare conclusory recognition evidence of a person long and closely familiar with the accused may havesubstantial value, even where the witness does not articulate the particular features or idiosyncrasies that underlie the recognition. [43] I found that testimony of Constable Mushi honest, forthright, that he admitted that not inserting his observation about the markon the right side of the head of Mr. Kovlaske was an oversight on his part and not intentional supports that he is human andacknowledges that not everything is perfect.

However, to counterbalance such, he was unshaken both on direct and cross-examinationthat he was firm and sure that he had identified and recognized Mr. Kovlaske. He repeatedly testified that his conclusion was based onthe number of times he has interacted with Mr.

Kovlaske, the length of each time that he interacted with him, he provided great detailabout each and every interaction without a need to refer to his notes, that he based it on the totality of the facial features including thesquare head on the body, the hair, the jawline that he observed both on the still and thereafter with high definition video assistance atmultiple angles, the gait of the person in the video, the placement of the nose, ears and mouth. With the dash cam video being of highdefinition quality, the issue as to its quality for the purposes of admissibility is not before me.

Photographic or video evidence wasaddressed in the decision of R. v. McKinnon, 2013 BCSC 2097. [44] Defence counsel respectfully seeks to exclude the recognition identification based on the inadvertent omission of Officer Mushinot noting his observation of the mark on the right side of the head of Mr. Kovlaske, however, I respectfully disagree and rely uponparagraph 39 of the Field, (supra), decision wherein the British Columbia Court of Appeal stated: Unless the trial judge has committed an error in principle in his assessment of the evidence, findings of fact relating to identification areentitled to deference.

Justice Groberman summarized the principles of appellate review of a trial judge’s conclusion as to eyewitnesstestimony in R. v. L. (W.M.), 2010 BCCA 355: [27] [The] Court must be conscious of its limited role in reviewing finding of fact in order to overturn such a finding, it must find apalpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33…. [28] In R. v.

Keshane (1992)… (BC CA), 11 BCAC 86, [1992] BCJ NO. 450, [the] Court, while recognizing theneed for eyewitness evidence to be carefully scrutinized, also acknowledged the limits of appellate review in respect of verdicts based onsuch evidence. [14] There is no special formula by which to assess eyewitness identification. Rather, such evidence is to be examined on a case bycase basis. And even where the witness’ identification is not based on the recognition of a distinctive characteristic of the accused thisdoes not necessarily undercut the efficacy of the identification.

Similarly, where there is a discrepancy between the description given bya witness and the person subsequently identified by that witness, this is not necessarily fact to a positive identification.

The sufficiencyof the identification evidence will depend on the circumstances surrounding the original identification, the nature of the discrepancy, andwhether there is other cogent evidence in the case pointing away from the guilt of the accused. [45] Crown counsel noted decisions wherein recognition evidence in the course of a voir dire was admissible, included the Field,(supra), decision, with that of a probation officer; McKinnon, (supra), which included that of two police officers of which oneinterviewed the accused for a two hour period and that the poster was posted some 22 months later requesting assistance inidentification; and R. v.

Schmidt, 2012 BCPC 247. I also adopt the decision of R. v. Behre, 2012 Ont. CA 716, wherein the Court heldthat for the purposes of recognition evidence and identification that idiosyncrasy are not required to be specifically noted at all times(para. 22). [46] Defence counsel did not provide the Court with any case law and sought to rely upon the Field, (supra), decision and mostnotably the Pengahli, (supra), statement about the levels of recognition by a person. [47] I find that the testimony of Officer Mushi is deemed to be credible and throughout his testimony was unwavering, focussed, andstrong.

He has interacted with Mr. Kovlaske on seven occasions, and in the course of his testimony he provided specific details as todates, times, length of interaction, and form of interaction. Further, he not only relied upon the still photographs exhibited herein from theHelp Identify Bulletin but took the step further and signed out the exhibited video images and watched them more than once, allowinghim to view and identify the person at multiple angles.

He consistently was able to remain unshaken and that, based on the totality of thesteps that he took, including duly noting the square head on the body, the hair, the placement of the eyes, nose and ears, and gait, he was

able to identify Mr. Kovlaske. There is nothing in his testimony that I deem should be inadmissible and it is noted that despite him identifying Mr. Kovlaske from the still images contained in the Help Identify, he took the additional steps as part of his own steps that he takes in the course of his duties for identification and recognition to sign out the videos and watch them more than once. [ 48 ] Officers know the importance of taking clear, cognizant, and concise notes and that such be taken, when and where possible, contemporaneously.

This officer candidly acknowledged, with the benefit now of hindsight, his shortcoming. However, what strongly counterbalances this before me are the digital stills he viewed, the signing out and viewing the digital video he viewed at multiple angles, and both the number of historical interactions he has personally had with the accused and the recency of some of those observations to the matter currently before this Court.

In applying the Penghali , ( supra ), decision, this Officer applied strong and proactive policing recognition skills to identify the accused, placing this recognition as being beyond a reasonable doubt as to the person being the accused before me. I am satisfied that the 3-step process in the Anderson, (supra ), decision and as articulated in the Field , (supra), decision has been met. [ 49 ] Wherefore the testimony of Officer Mushi in this voir dire is deemed admissible. _______________________________ The Honourable Judge K.

Arthur-Leung Provincial Court of British Columbia CORRIGENDUM - Released December 9, 2019 In the Ruling on Voir Dire dated October 29, 2019, the following changes have been made: At para. 40, the correct citation for Regina v. Field , should read 2018 BCCA 253 . _______________________________ The Honourable Judge K. Arthur-Leung Provincial Court of British Columbia CORRIGENDUM - Released January 7, 2020 In the Ruling on Voir Dire dated October 29, 2019, the following changes have been made: At para. 44, the correct citation for R. v.

L. (W.M.) , should read 2010 BCCA 355 . _______________________________ The Honourable Judge K. Arthur-Leung Provincial Court of British Columbia