R. v. Harris Date:, 2016 BCPC 297

Citation: R. v. Harris Date: 20160623 2016 BCPC 297 File Nos: 212354-1,212459-1 Registry: Surrey IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. DEAN GARETT HARRIS ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. SUDEYKO Counsel for the Crown: A. Jantunen Counsel for the Accused: D. Gable Place of Hearing: Surrey , B.C. Date of Hearing: June 9, 10 and 15, 2016 Date of Judgment: June 23, 2016

[ 1 ] Dean Garett Harris is charged with Break and Enter of a dwelling house on April 18, 2015, contrary to Section 348(1) (

b) of the Criminal Code . This matter proceeded on June 9th, 10th, 15th which included submissions from both Crown and defence. This is my decision. Introduction [ 2 ] A family was out at a parade in Surrey on April 18, 2015. When they came home, they discovered their house had been broken into and certain valuable items had been taken. However, they had recently installed a security camera system. The security camera seemingly captured this apparent break and enter, including video showing two men kicking and breaking through a door leading into the garage.

The video was of high quality. [ 3 ] The Surrey RCMP distributed this video to their members and two police officers independently said that they recognized one of the men as Mr. Harris. As a result, Mr. Harris was charged with break and enter with intent to commit an indictable offence. Those same two police officers each gave evidence that they had previous dealings with Mr. Harris, which assisted with their having recognized him in the video. In turn, I was asked to make my own observations regarding the person in the video was Mr. Harris.

All eyewitness identification evidence is opinion. [ 4 ] The issue in this case is whether, on the basis of those opinions, mine and those of the two police officers, I am satisfied beyond a reasonable doubt that Harris was the person in the video. The Break and Enter [ 5 ] Although the defence argued that there is some doubt that a break and enter occurred here and, therefore, what we see in the video was perhaps something else, I have no problem rejecting that argument. I will briefly review the evidence that leads me to that conclusion. [ 6 ] The video shows the person, who the police later say is Mr.

Harris, arrive in an SUV, which is backed in. The SUV remains there for some time before he exits. He then knocks on the front door over an extended period, as well as looks through a front side window. That is all consistent with an effort to confirm that no one is home. We then see him seemingly trying a key in the front door and heaving to pull it open. Indeed, the quality of the video allowed me to observe that the door appeared to be held closed but not by the usual location of the lock at the knob.

The door bent at the seams with that effort but did not open. [ 7 ] The video then shows this person from a camera at the side of the house, which again showed his efforts to open other doors with a key.

He is unsuccessful and then returns to an area where there is a side door and another person joins him and they take turns kicking the door, which eventually appears to break open. [ 8 ] The pictures taken after the police attended and the evidence of the homeowner also confirm the breakage of the outside garage door off its frame, a further door inside the garage that was broken away from the frame and an upstairs bedroom where the drawers and wardrobe were strewn about.

The homeowner's evidence was that a laptop and iPad, as well as some jewellery, were missing from the home. [ 9 ] The homeowner also testified that the home had a previous recent break in to the garage, at which point house keys were stolen. She testified that, as a result, both this security camera system was installed and the locks were all changed. The only exception was the front door, which they had not had time to change, but which had childproofing inside. I take that to be a security device to keep the door secured to the doorframe and from being opened by simply turning the knob inside.

All of that explains the person seemingly trying keys to some doors which did not indeed work, as well as the unsuccessful efforts at the front door. [ 10 ] The homeowner also confirmed that she did not know either of the men in the video. [ 11 ] From all of that, I am satisfied beyond a reasonable doubt that there was clearly a break and enter of this home by these two men and that what we saw in the video was a part of that break and enter. [ 12 ] I now turn to the real issue in this case, identification. Recognition Evidence [ 13 ] Like all eyewitness identification, recognition evidence is opinion.

While opinion may, in many cases, be something to be more cautious about, it may also be highly probative. For instance, a person may be asked to identify their own spouse or child in a case where the image or observation is reasonably good. The statement that that is your spouse or child is only opinion but would undoubtedly be considered a virtual certainty. That is because we would feel rather confident that a person can recognize their own spouse or child. [ 14 ] This issue is also discussed in R. v. Muncey , [2013] BCSC 689. Mr. Justice Voith refers to the Ontario Court of Appeal decision in R. v.

Berhe , 2012 ONCA 716 , in which Blair, J.A. in relation to a consideration of whether a part of the test for admissibility of recognition evidence should require unique identifiable features or idiosyncrasies, said as follows: In my view, however, it is going beyond what is necessary for threshold admissibility to add another layer to the test requiring the recognition evidence witness to show that he or she can point to some unique identifiable feature or idiosyncrasy of the person to be identified. Such concerns are better resolved in determining the ultimate reliability of the evidence.

There are many ordinary people who do not have any particular identifiable features or idiosyncrasies differentiating them from the normal crowd; people familiar with them may well be able to identify their photograph, however.

[15] For that reason, recognition evidence is generally considered to be more reliable than other forms of stranger eyewitnessidentification, but it must still be approached with caution. This is discussed in R. v. Pierce, 2011 BCCA 485, at paragraph 39 where D.Smith, J.A. for the court said: While recognition evidence may be more reliable than eyewitness identification of a stranger, special caution must still be taken whenusing it to identify an offender, as it is still merely a statement of a witness’s opinion about what he or she saw.

Like all identificationevidence its weight or reliability will depend on such circumstances as the nature, length and memorable features of the witness’sprevious contact... [16] Therefore, the strength of the recognition evidence will be based on the extent to which that witness has seen or spent time withthat person, whether that was memorable, as well as by the quality of the observation to which they are then being identified or indeedrecognized. Videotape Evidence [17] The apparent value of videotape evidence has been commented on by the Supreme Court of Canada in R. v.

Nikolovski, (SCC), [1996] 3 SCR 1197, at paragraphs 28-29: Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, it becomes admissible andrelevant evidence. Not only is the tape real evidence, but it is also, to a certain extent, testimonial evidence as well. It should be used bya trier of fact in determining whether a crime has been committed and whether the accused before the court committed the crime. It mayindeed be a silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events.

It mayprovide such strong and convincing evidence that of itself it will demonstrate clearly either the innocence or guilt of the accused. The weight to be accorded that evidence can be assessed from a viewing of the videotape. The degree of clarity and quality of the tape,and to a lesser extent the length of time during which the accused appears on the videotape, will all go towards establishing the weightwhich a trier of fact may properly place upon the evidence.

The time of depiction may not be significant for even if there are but a fewframes which clearly show the perpetrator that may be sufficient to identify the accused. Particularly will this be true if the trier of facthas reviewed the tape on several occasions and stopped it to study the pertinent frames. The Police Recognition Evidence [18] In this case, both police officers confirmed previous criminal dealings with Harris, the fact of or circumstances of which I havenot considered. [19] The face-to-face contact each of these police officers had with Harris was brief over a number of years.

The police officers feltthese contacts were quite memorable, albeit more for the incident than for his appearance. However, those face-to-face dealings werealso reinforced by booking photographs of Mr. Harris that were available for their viewing, both in case files and by virtue of placementthroughout their police offices. [20] Each of these police officers simply stated that they recognized the person in the video as Mr.

Harris and that his appearance isconsistent with the more general descriptions of his build, hair, or indeed baldness, from their previous observations in person and thepictures on file. [21] Both police officers also described their experience doing surveillance of prolific car theft offenders and suggested they had todevelop exceptional observational and identification skills. They were quite certain of their identifications. Certainty is, of course, noguarantee of accuracy.

The Quality of the Videotape [22] In regard to the quality of the videotape from which the apparent identification is made in this case, the evidence of thetechnician who had recently installed the security system is that it uses digital imagery and is 300 to 400 times better than analoguevideo. That evidence aside, I found that the security video was a very high resolution and small details were readily observable. I alsonote that the security video provided angles of the man, identified by the police as Harris, from above and face-forward, as well as fromthe side, and over a number of minutes.

Of course, there was also the opportunity to stop and freeze the video and to replay it anynumber of times, as occurred during portions of this trial. Defence Submissions [23] The defence did not challenge the threshold of familiarity necessary for the admission of the recognition evidence of the twopolice officers but he argued that there was a limited history of interaction with Mr. Harris and, by virtue of the frailties of eyewitnessidentification generally, there should be little weight given to this evidence.

The defence also argued that such opinion evidence shouldinclude or at least would be more valuable with a more detailed description of that person or, even better, an observation of somethingunique, such as a tattoo or scar. Analysis [24] I was not persuaded that these particular police officers had any special ability to identify individuals as a result of their work insurveillance of prolific car thieves, as nothing beyond their own experience in doing this work was presented. [25] I also agree with the defence that the police officers' face-to-face dealings with Mr.

Harris were rather brief and spread out oversome time.

[ 26 ] In turn, I agree that where something is particularly unique, then that would typically strengthen the identification but that is not always the case, to the extent that people may not have distinctive features but be easily recognizable by someone familiar to them. [ 27 ] In the end, based on the number of memorable ongoing police dealings with Mr. Harris by two separate police officers and the booking photographs available and displayed around the police office, together with the high quality of the video, I give some weight to that recognition evidence.

I am mindful that it remains opinion only and must be treated carefully.

My Observations [ 28 ] As referred to above, the Supreme Court of Canada in Nikolovski established that a judge may, indeed should, make his or her own observations from such things as videotape evidence for the purpose of identification. [ 29 ] Although my observations were not subject to cross-examination, I invited the Crown and defence to make submissions on the evidence available for my observations, which they did. [ 30 ] In the end, based on the exceptionally good quality of the videotape evidence, I am able to conclude that the person on the video appears very much to be the same person as appeared before me, that being Mr.

Harris, whom I was able to observe in the courtroom over some two days. However, that opinion is buttressed by the following additional evidence. [ 31 ] The video, when slowed and frozen, as was done by the Crown, and the still photographs taken from that video that were entered as exhibits, clearly reveal a particularly distinctive marking on the person in the video which is consistent with both the arrest photograph of Mr. Harris taken in September 2015, and was clearly visible on him as he appeared before me in court throughout this trial.

That marking is a very distinctive large bump or cyst in his forehead above his right eye. [ 32 ] The police did not mention that distinctive marking. The Crown points out that the explanation for that may be that this marking may not have been present during the earlier periods when the police had dealt with Harris and that the booking photographs filed as exhibits in this proceeding from those earlier dealings do not reveal a large bump or cyst. I accept that explanation and, in fact, would have found a reference to the bump or cyst to be inconsistent with the earlier dealings the police had with Mr. Harris.

Conclusion [ 33 ] In addition to the weight I have accorded the two police officers' recognition evidence, my own observations of the video and the still of the video against both Mr. Harris, as he appeared before me, and in his booking photograph in September 2015, I am satisfied beyond a reasonable doubt that he is the person in the security video. I am also satisfied beyond a reasonable doubt that he was at least one of the perpetrators of the break and enter with intent to commit an indictable offence, to wit, in this case, theft. [ 34 ] I therefore find him guilty as charged. (REASONS FOR JUDGMENT CONCLUDED)