R. v. George, 2023 ONCJ 303

ONTARIO COURT OF JUSTICE CITATION: R. v. George , 2023 ONCJ 303 DATE: 2023 07 05 COURT FILE No.: Toronto 22-50003122 BETWEEN: HIS MAJESTY THE KING — AND — KEVIN GEORGE Before Justice Peter N. Fraser Heard on September 7-9, 12-15, 2022 Reasons for Decision released on July 5, 2023 P. Zambonini & A. Bradstreet ........................................................ counsel for the Crown C.

Zeeh.................................................................... counsel for the accused Kevin George Fraser J.: [ 1 ] Kevin George stands charged with multiple offences arising out of a shootout at his own one-year-old child’s birthday party on June 19, 2021, including attempted murder, discharging a firearm with intent to endanger life and aggravated assault. [ 2 ] The Crown seeks the admission of a photograph which is alleged to depict the accused at the scene of the shooting.

The defence argues the threshold for admissibility has not been met, as no witness has authenticated it and the Crown has invoked informer privilege in connection with any information related to its origin. [ 3 ] On October 30, 2022, I found the photo had been authenticated on the basis of circumstantial evidence and the threshold for admissibility had been met.

I ruled that issues concerning the origin of the photo and the possibility of tampering were properly dealt with as matters of weight in the context of the trial proper. [ 4 ] As counsel required the ruling in order to make closing arguments, I provided the ruling and indicated that reasons would

follow. These are the reasons. Factual Background [5] On June 19, 2021, Kaiden Leitch celebrated his first birthday with a large outdoor party on Tandridge Crescent in Toronto. Theparty had a baby shark theme, after the popular children’s song, with family members wearing T-shirts indicating their relationship to thebirthday boy. For example, his mother wore a “mommy shark” T-shirt, his grandmother wore a “grandma shark” T-shirt and his unclewore an “uncle shark” T-shirt. [6] Shortly before 8:00 pm, gunfire erupted in the midst of the birthday party.

Four men discharged a total of twenty-two rounds ofammunition during a firefight that left one combatant and two children seriously injured and sent countless more running for their lives.The Crown alleges that Kevin George precipitated these events when he drew a handgun and fired on Demar Cadogan, another attendeeof the party. According to the Crown, Mr. George is captured in video footage of the incident, wearing a red hat and other distinctivearticles of clothing.

Identity is one of the central issues in the trial. [7] The security videos were recorded from a distance and the images of the shooter’s face are not clear enough to identify him. Incontrast, the photograph in question was taken at close range and provides a clearer view of the shooter’s face and clothing. The photoassists the Crown for three main reasons. First, it allows for a meaningful comparison between the face of the shooter and the face of theaccused. Second, it allows for a better comparison of the shooter’s clothing to articles of clothing known to belong to the accused.

Third,it reveals the words “daddy shark” on the front of the shooter’s T-shirt, which tend to implicate the accused in the context of this birthdayparty, where family members wore matching “baby shark” themed T-shirts indicating their relationship to the birthday boy. KevinGeorge is the father of Kaiden Leitch. [8] The photograph in question was provided to police by a confidential source, and the Crown has invoked informer privilege inconnection with any information that could reveal the identity of the source: R. v. Leipert, (SCC), [1997] S.C.J. No. 14(S.C.C.) at paras. 9-10; R. v.

Omar, 2007 ONCA 117 at paras. 37-38. Consequently, there is no evidence as to who took the photo orwhat device was used to capture it. While the exhibit was presented to the Court in electronic form, I do not know whether the originalwas a digital photo or a conventional one. If the photo was digital in nature, the original electronic file has not been provided and nometadata is available.

If the photo was conventional in nature, the original copy has not been produced. [9] The defence ultimately abandoned its application for production of the original photograph and acknowledged the innocence atstake test could not be satisfied, so as to pierce the informer privilege in this case.

Instead, the defence argues the test for admissibilityhas not been met, given the absence of information around the photo’s origin and the absence of any witness capable of authenticating it.The Crown submits the photograph can be authenticated circumstantially, by comparing the contents with other reliable evidence in thetrial record. Authenticating Digital Exhibits [10] I consider the photograph to be a piece of digital evidence. While it may have derived from a conventional photo, the exhibitfiled with the court is a digital file.

Electronic documents can become admissible through common law principles of authentication orpursuant to

section 31.1 of the Canada Evidence Act, which provides as follows: Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable ofsupporting a finding that the electronic document is that which it is purported to be. [11] This provision is a codification of the common law principles of authentication in the context of electronic documents: R. v.Hirsch, 2017 SKCA 14 at para. 18; R. v. Ball, 2019 BCCA 32 at para. 70. The burden rests with the party tendering the piece ofevidence in question: R. v. Andalib-Goortani, 2014 ONSC 4690 at paras. 24-27.

The threshold for admission is low, requiring only someevidence capable of supporting a finding that the electronic document, “is that which it is purported to be”: R. v. C.B., 2019 ONCA 380at paras. 57-68; R. v. Richardson, 2020 NBCA 35 at para. 27. This requirement is not onerous and may be established by direct orcircumstantial evidence: see R. v. C.B., supra, at paras. 66-68; R. v.

Farouk, 2019 ONCA 662 at para. 60. [12] Importantly, the question of whether an electronic document is authenticated, such that it becomes admissible, is distinct fromthe question of whether the document is genuine, such that a trier of fact may rely on it. In R. v. Hirsch, supra, at paras. 18-14, the Courtof Appeal for Saskatchewan characterized this distinction as being separate inquiries into the authenticity and the integrity of thedocument respectively.[1] [13] The Ontario Court of Appeal drew the same distinction in R. v.

C.B., supra, at para. 60 & 70, where Watt J.A. held thatadmissibility is achieved by some evidence that the document is what it purports to be; whereas the ultimate question of whether thedocument actually is what it purports to be is “a question for the trier of fact to decide on all the evidence adduced at trial.” In that case,the electronic documents were text messages and photographs, which were put to the complainant in cross-examination. The complainantwas equivocal as to whether she sent the messages, and did not provide direct evidence of authentication in the conventional sense.

TheCourt observed that the threshold for admissibility was modest and neither the common law nor s. 31.1 of the Canada Evidence Actimposed any limitations on the manner of proof when authenticating electronic documents. The material was properly admissible, as thecomplainant had confirmed the cell phone number was hers, she had the phone at the material time, and she had explained the meaningof some of the texts.

The Court also addressed the complainant’s suggestion that the messages had been tampered with or altered, atparagraph 72, holding that concerns over tampering or distortion were properly questions of weight rather than admissibility: [E]ven if there were an air of reality to such a claim, the low threshold for authentication, whether at common law or under s. 31.1 ofthe CEA, would seem to assign such a prospect to an assessment of weight. Application to the Present Case [14] In this case, the Crown argues the photograph can be authenticated circum​stantially, since the content of the image is consistent

with the unchallenged video evidence from Tandridge Crescent. The Crown submits that everything about the subject’s appearance inthe photo accords with the shooter’s appearance in the video footage, and the same can be said for his physical surroundings. [15] I have compared the “daddy shark” photograph to the video footage from the site of the shooting and from Lagerfeld Drive, towhich the shooters travelled afterward.

I have also compared the background depicted in the photograph against the FIS photos of thescene and the police body-worn camera video from the day of the shooting. [16] The man in the photograph has a red hat with white markings near the brim. He has dark skin and a tall, slim build. He iswearing a blue surgical mask down under his chin. He appears to be holding a cell phone in his right hand and a cigarette in his left. Theshooter in the videos has a red hat with white markings in the same place. He has the same skin tone and body type as the man in thephoto.

He can be seen at various points in the video footage with his mask down under his chin. At times, he can be seen carrying whatappears to be a cell phone in his right hand and smoking with his left. [17] The man in the photograph is wearing light blue jeans with a red heart-shaped print on his left knee, a blue star on his right thigh,and a red strap hanging down from his waist. The shooter in the videos is wearing light blue jeans with the same distinctive features.While it is less defined in the video footage, there is clearly a red patch on the left knee, with the same shape and orientation.

The bluestar is clearly visible on the right thigh, particularly in the video from Lagerfeld Drive. A red strap is visible at several points in thevideos, and it hangs from the same part of the waist as the one in the photograph. [18] The background of the photograph is also consistent with the video and photographic evidence of the scene. The low brown barsin the photo are consistent with the fencing that separates the properties at Tandridge Crescent. The lawn, pathway and square cut hedgesare all similar. In the photo, there is a clear plastic cup sitting on the curb with a blue liquid inside.

This matches drinks that were servedat the party. In the photo there is a black Mercedes toy car on the pathway. This matches the toy car that was given to Kaiden at hisbirthday party, right down to the blue bow on the hood. [19] The man in the photograph is wearing a long white T-shirt with the image of a shark on the front, rendered in blue and paleyellow colours. The word “DADDY” is printed above it and the word “SHARK” is printed below. Both are in blue capital letters.Underneath are three short words printed in gold that cannot be discerned from the photo.

There are also blue and gold stars printedaround the collar of the shirt. [20] The shooter in the video footage from Tandridge Crescent is also wearing a long white T-shirt. The words on the front cannot beclearly discerned, but their outline is consistent in shape with the words “DADDY SHARK.” The graphic in the middle cannot clearly bediscerned in the videos, though it is consistent with the shark image from the photograph. In the video footage, there is clearly a bluesemi-circle that closely mirrors the top of the shark’s head from the photo.

The three words at the bottom of the shirt and the stars aroundthe collar are consistent with the Baby Shark themed shirts worn by other family members at the party. [21] After careful review, I see nothing in the video footage that is inconsistent with the contents of the “daddy shark” photograph. Tothe contrary, every discernible detail is consistent.

This analysis leads me to conclude that the low threshold for authentication has beenmet. [22] In my view, the process of comparing the contents of the photograph to other reliable evidence is not categorically different fromthe processes by which witnesses normally authenticate this kind of evidence. Photographs are generally admissible provided theyaccurately and truly represent the facts, they are fairly presented without any intent to mislead, and are verified on oath by a personcapable of doing so: R. v. Creemer and Cormier, (NS CA), [1967] N.S.J. No. 3 at para. 18; R. v. Andalib-Goortani,supra, at para. 28.

In some cases, a witness can testify to these points because they have taken the photo. In other cases, however, thewitness will not have taken the photo or have any knowledge of the device used to take it. Instead, the witness can authenticate the photobecause the content accords with their own observations of the subject matter depicted: R. v. B.S., 2019 ONCA 72 at para. 5; R. v.Bulldog, 2015 ABCA 251 at paras. 26-41. This is, in principle, the same exercise as the one I have engaged in here.

In place of a witness’testimony that the photo accords with their memory of the scene, I can compare the photo to other reliable evidence and make thatdetermination for myself. [23] I am prepared to take judicial notice of how easily photographs can be altered using widely available technology and howconvincing forgeries can be made to appear. However, it seems to me the possibility this photo was altered diminishes to almost thevanishing point in view of the precise accordance, in respect of so many points of comparison, between its content and the other reliableevidence in this record.

And in any case, the controlling authorities direct that such concerns are properly matters of weight rather thanadmissibility. Conclusion [24] I find the photo has been authenticated on the basis of circumstantial evidence and the threshold for admissibility has been met. Released: July 5, 2023 Signed: Justice Peter N. Fraser

[1] Similar distinctions exist elsewhere in the rules of evidence. For example, in the hearsay context, there is a well-known distinction between threshold reliability and ultimate reliability: R. v. Bradshaw , 2017 SCC 25 at paras. 39-42 .