R. v. Britt Date:, 2017 BCPC 389

Citation: R. v. Britt Date: 20171208 2017 BCPC 389 File No: 82217-1 Registry: Nanaimo IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ANTHONY EDWARD BRITT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE GOUGE Counsel for the Crown: B. Hughes and C. Narroway Counsel for the Defendant: P. Hertzberg Place of Hearing: Nanaimo , B.C. Dates of Hearing: September 11, December 8, 2017 Date of Judgment: December 8, 2017

The Issue [1] Mr. Britt is charged with theft of a carton of cigarettes from the Millway Gas ‘N Go, a convenience store in Nanaimo. Theissue is whether the evidence sufficiently identifies Mr. Britt as the thief. The Evidence [2] Ms. Nolie was the assistant manager on duty at the store at the time of the theft. Another employee asked Ms. Nolie toreplenish the supply of cigarettes at the check-out counter. She brought three or four cartons of cigarettes from the storage room and putthem on the counter beside the cash register. A few moments later, a male customer asked her permission to use the telephone.

Sheagreed, and the customer made a telephone call. She turned away to attend to other duties. When she looked back, the customer had leftand one carton of cigarettes was missing. She did not see anyone take the missing carton. She then reviewed surveillance video footageof the cash desk during the preceding 40 minutes or so. On the surveillance video, she observed the customer who had asked herpermission to use the telephone. The surveillance video from one camera shows him approaching the counter where the cigarettes were,speaking briefly to Ms. Nolie, and using the telephone.

The surveillance video from another camera shows a hand taking a carton ofcigarettes. The face and body attached to the hand are not visible in that video. However, I am convinced beyond a reasonable doubtthat the hand which took the cigarettes is the hand of the man using the telephone. That inference follows convincingly from the factthat the surveillance video shows no one else in the vicinity of the cash counter in the minute or so before the cigarettes were taken. [3] Mr. Britt was seated in the courtroom throughout the trial. Ms.

Nolie was not asked whether the man who asked to use thetelephone was in the courtroom, nor did she identify Mr. Britt in any other way. [4] Ms. Hargreaves was the manager of the store. She was not in the store at the time of the theft. Earlier on that day, she saw aman in the parking lot of the store. Later on the day of the theft, she reviewed the surveillance videos and identified Mr. Britt as the manseen in two surveillance videos: (

i) the one showing the customer using the telephone; and (ii) a third video, from a camera outside thestore, showing a man leaving the store carrying a carton of cigarettes. At trial, she identified Mr. Britt (seated in the courtroom) as theman whom she had seen earlier in the day and who appears on the two videos to which she referred. [5] Constable Gilmour is an RCMP officer, who has been stationed in Nanaimo since 2007. He reviewed the surveillance videosand recognized the man who asked to use the telephone as Mr. Britt. He proceeded to arrest Mr.

Britt, and the present charge was laid. [6] None of the Crown witnesses was tendered as qualified to give opinion evidence, and there is no evidence that any of them hasany skills, qualifications, training or experience in relation to video evidence or its

interpretation. [7] Constable Gilmour said that he had encountered Mr. Britt, “… personally and up close …”, in the course of a previous policeinvestigation in August, 2015, but gave no details of the encounter. When he first saw the surveillance video in this case, he thought thathe recognized the man using the telephone, but could not recall his name. He remembered the name on the following day, when Mr.Britt’s brother came to his attention on an unrelated matter. He then reviewed still photographs of Mr. Britt in police files, whichappeared to him to confirm his identification of Mr. Britt on the videos. Ms.

Hargreaves said that she had seen Mr. Britt at the MillwayGas ‘N Go on the morning of the theft, but gave no details of her interaction (if any) with him at that time, and did not say that she hadseen him on any prior occasion. [8] It is not suggested that the surveillance videos had been altered or tampered with in any way. [9] The quality of the surveillance videos are poor. If the only evidence were the videos, I would not feel confident that I couldidentify Mr. Britt as the person who asked to use the telephone. Assessment of the Evidence [10] Ms. Nolie would have been competent to identify Mr.

Britt as the man who asked to use the telephone because she was theperson to whom the request was made. Such evidence would be direct evidence of the identity of that person, not dependent in any wayon the surveillance videos. The surveillance videos are sufficient to prove that the man who asked to use the telephone was the thief. However, Ms. Nolie was not asked to identify Mr. Britt as the man who asked to use the telephone, and she did not do so. [11] Constable Gilmour and Ms. Hargreaves did not see the man who asked to use the telephone.

Their evidence is tendered insupport of the conclusion that the person seen using the telephone in the surveillance video is Mr. Britt. The governing principle is this. A witness may not be asked to identify a person in a video unless the witness is, for some reason, better able to identify the person thanthe trier of fact. Unless there is evidence to establish the superior ability of the witness, the evidence is not admissible: R. v.

Leaney (SCC), [1989] 2 SCR 393 at paragraph 33. [12] A person who had a prior acquaintance with the person in the video may be better able to identify that person than someone,like me, who had not seen him before viewing the video. Such evidence is referred to as “recognition evidence”, and was discussed in R.v. Anderson 2005 BCSC 1346; [2005] BCJ No. 3053. At paragraph 25 Justice Smith said: In

summary, the case law suggests that the indicia for determining whether the threshold degree of familiarity for the reception ofrecognition evidence has been met is threefold: (

i) the length of the prior relationship between the witness and the accused; (ii) thecircumstances of the prior relationship between the witness and the accused; and, (iii) the recency of the contact between the witness andthe accused prior to the event where the witness recognized the accused. The indicia also go to the weight to be assigned to therecognition evidence along with two other factors, namely: the cumulative effect of recognition evidence provided by more than onewitness and the circumstances under which the witness recognized the accused. Length of prior acquaintance is not the only factor to consider. A relatively brief, but intense, prior acquaintance may be sufficient to

render recognition evidence admissible: R. v. Crawford 2013 BCSC 2401; 2013 BCSC 2402 , [2013] BCJ No. 2879 atparagraph 63. [13] In this case, I was provided with no particulars of the prior encounter between Mr. Britt and Constable Gilmour. Without thoseparticulars, the requisite evidentiary basis for reception of recognition evidence from Constable Gilmour is absent, and his evidence isnot admissible. Ms. Hargreaves’ evidence was that she encountered Mr. Britt only once, and that they did not speak or otherwiseinteract. That is insufficient to support the admissibility of recognition evidence from her.

Disposition [14] There is no admissible evidence to support the inference that Mr. Britt is the man who asked to use the telephone. The qualityof the video is insufficient to allow me to draw that inference myself. As a result, Mr. Britt is entitled to be acquitted. December 8, 2017 ___________________________ T. Gouge, PCJ