R v John, 2021 SKCA 83

Court of Appeal for Saskatchewan Docket: CACR3324 Citation: R v John , 2021 SKCA 83 Date: 2021-05-28 Between: Wesley Floyd John Appellant And Her Majesty the Queen Respondent Before: Schwann, Barrington-Foote and Kalmakoff JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Mr. Justice Barrington-Foote The Honourable Mr. Justice Kalmakoff On appeal from: Provincial Court, North Battleford Appeal heard: March 15, 2021 Counsel: Kathy Hodgson-Smith for the Appellant Andrew Davis for the Respondent Schwann J.A. I.

INTRODUCTION [ 1 ] Wesley Floyd John was found guilty of two counts of break and enter with intent to commit an indictable offence, contrary to s. 348(1) (

a) of the Criminal Code and one count of possession of stolen property exceeding $5,000, contrary to s. 355 (a). [ 2 ] In his appeal from conviction, Mr. John argues the trial judge erred by improperly admitting recognition evidence without holding a voir dire , impermissibly relying on hearsay evidence, and misapprehending the evidence. He also argues the verdict is unreasonable and should be set aside, and that, in the alternative, the trial judge failed to give sufficient reasons. [ 3 ] For the reasons that follow, Mr. John’s appeal must be dismissed. II.

BACKGROUND [ 4 ] At around 4:00 a.m., on September 29, 2018, a white Dodge Ram pick-up truck [truck] was seen backing into the front door of the Synergy Credit Union [Synergy] building in Lashburn, Saskatchewan. The truck bore a visible red Ronin decal on its side. After the truck knocked over an ATM, a male exited from the truck and tried to remove the ATM from its moorings. The male was accompanied by a female. The male and female then left the Synergy building in the truck.

These events were witnessed by an individual who resides across the street from the Synergy building and were also captured on Synergy’s on-site surveillance camera. [ 5 ] At trial, the Crown adduced still photos captured by Synergy’s surveillance video camera [Synergy photos]. These photos depict an adult male wearing a black hooded jacket with three distinct yellow stripes down the sleeves, a pair of yellow work gloves and dark shoes with white soles. The female who accompanied the male also wore work gloves, dark pants, and dark shoes with white soles.

Both individuals were masked. [ 6 ] The police subsequently discovered that the truck seen in the surveillance video and Synergy photos was a stolen vehicle that belonged to Ronin Production Services Limited. [ 7 ] At around 5:24 a.m. that same day, the surveillance camera at Forbes Bros. [Forbes] in North Battleford, Saskatchewan, captured a male and female pulling into its parking lot in a white truck bearing a Ronin decal. The surveillance video next picked up a male and female exiting the truck and then prying open the side door to the Forbes building.

A second interior surveillance camera showed the male and female entering the building and roaming about inside, with the male entering the office area of the building a few minutes later. At 5:32 a.m., the interior lights to the building were switched off and the female drove a GMC SUV [SUV] from the building. After the female drove out, the male exited from the man door and re-entered the truck.

Both vehicles left the Forbes parking lot just before 5:33 a.m. [ 8 ] The male seen in the Forbes video was wearing a black hoodie with yellow stripes down the side (albeit less distinctive than in the Synergy photos), work gloves (with yellow at the wrist) and dark shoes with white soles. The female depicted in the Forbes video was wearing dark clothing and dark shoes with white soles. Some type of red clothing was noticeable underneath the female’s jacket when she bent over.

Although the male and female were not masked, their faces were not completely discernable. [ 9 ] The manager of Forbes arrived at the scene a short time after the break-in. He noticed that the side door to the building had been pried open, keys were missing and some obvious rummaging about had taken place in his office. Approximately $300 was missing from his desk. [ 10 ] The SUV was equipped with a GPS tracking device. The data that it generated showed that the SUV had stopped in Langham,

Saskatchewan, at around 6:21 a.m. that day. The GPS tracking information eventually led to the discovery of the SUV in Regina. [11] Constable Andrew Reid testified about the contents of the Forbes surveillance footage as it was played in court. He said that herelied on the GPS tracking information to track the progress of the SUV after it was driven out of the Forbes building. It revealed that, at6:30 a.m. on the same day as the earlier break-ins, the vehicle had stopped at a Petro-Canada station in Langham, Saskatchewan, which isjust off Highway 16.

Constable Reid retrieved the video surveillance footage from that Petro-Canada store. It showed a male and femalewearing clothing that was identical to the clothing worn by the male and female in the previous two incidents, but this time their faceswere uncovered and in full view of the Petro-Canada store surveillance camera. [12] The surveillance footage showed the male entering the Petro-Canada store on two occasions. He was wearing a black Adidashoodie with distinctive yellow stripes and black shoes with white soles.

He was not masked and his face was captured in full view of thecamera from a number of different angles, including a frame where he looked directly into the camera. The video depicted the femaleentering the Petro-Canada store twice, once with the man. A red shirt was visible underneath her dark jacket. [13] As mentioned, the GPS data led to the location and the recovery of the SUV in Regina. The Regina police were able to take afingerprint from this vehicle, which was found to match Lindsay Wesaquate. By reviewing their files associated with Ms.

Wesaquate, thepolice were able to link her to two males, both by the name of Wesley Floyd John: one of the men was in his 20s and the other was older.Using this lead, the police found a file photograph depicting the older Wesley Floyd John. This photograph was entered as an exhibit attrial [P-5]. Mr. John admitted that he was the person depicted in P-5. [14] The sole issue at trial was identity. The trial judge recognized the case for the Crown was entirely circumstantial and said hefound the circumstances “very unique”.

He commented on the similarity of the clothing worn by the male in the Synergy photos with themale in the Forbes and Petro-Canada store videos. The trial judge observed that, although there was some distortion in the Petro-Canadastore video, which made the persons appear slightly shorter and wider, he was satisfied with its quality. He specifically noted that thepictures of the male shown in this video were taken from several angles, including one where the male is seen looking directly at thecamera.

In the end, the trial judge said he was satisfied beyond a reasonable doubt “that it’s the same man in the photos at the SynergyCredit Union as in the photo at Forbes Bros. here in North Battleford as in the video -- pardon me, the video at Forbes Bros. and the videotaken from the Petro-Can at -- at Langham, Saskatchewan”. [15] The trial judge identified Mr. John as the perpetrator of the break-ins by comparing his face – as he appeared in the courtroom– to the face of the male in the Petro-Canada store video.

He concluded on this point by saying, “this is the man that was in the LanghamPetro-Can station and on video”. [16] Mr. John was found guilty of breaking and entering the Synergy Credit Union with intent to commit an indictable offencetherein and of breaking and entering Forbes Bros. He was also found guilty of possession of stolen property exceeding $5,000. Mr. Johnappeals from those convictions. III. ANALYSIS A. Recognition evidence and the need for a voir dire 1. The law on identification evidence [17] The only issue at trial was identification. Mr.

John’s principal argument on appeal is that the trial judge mishandled that issueand the evidence pertaining to identification. I therefore find it useful to begin with an overview of the law concerning the admissibilityand assessment of identification evidence. [18] There are three recognized types of identification evidence that may be tendered at trial: eyewitness evidence, identification bythe trier of fact and recognition evidence. A

summary of each form of identification is found in R v Field, 2018 BCCA 253, 362 CCC (3d)401, leave to appeal to SCC refused, [Field]: [23] There are at least three distinct types of identification evidence that may be tendered, each with its own reliability characteristics: (

i) Eyewitness evidence by a stranger: Experience has shown that eyewitness evidence proffered by a stranger to the accused is the leastreliable identification evidence. It has been described as “inherently unreliable”: R. v. M.B., 2017 ONCA 653 at para. 29. In light of themany instances in which identification has proved erroneous, the trier of fact must be cognizant of “the inherent frailties of identificationevidence arising from the psychological fact of the unreliability of human observation and recollection”: R. v.

Burke, (SCC), [1996] 1 S.C.R. 474 at para. 52. (ii) Identification by the trier of fact through photographic evidence: On occasion, the trier of fact will have the benefit of photographicevidence taken at or sufficiently near the scene of the crime to have probative value in determining the identity of the perpetrator. As longas the photographic evidence is of sufficient clarity and quality to permit identification of the person shown in the photo, the evidence canbe admitted and weighed with other evidence by the trier of fact: R. v.

Nikolovski, (SCC), [1996] 3 S.C.R. 1197 atpara. 23. (iii) Recognition evidence: The Crown may also choose to tender opinion evidence from a person or persons who can identify theindividual shown in a photo or video. This evidence is admissible if the witness had a prior acquaintance with the accused and is thereforein a better position than the trier of fact to conclude whether the individual in the photo is the accused: R. v. Leaney, (SCC), [1989] 2 S.C.R. 393; R. v. Brown (2006), (ON CA), 215 C.C.C. (3d) 330 (Ont. C.A.). (Emphasis in original)

[19] Eyewitness identification is the lay opinion of a witness who identifies an accused: “The admissibility of the opinion is basedon prior observations, out-of-court identification procedures and confirmation of the opinion in-court by way of an in-dock identificationas contemplated by s. 6.1 of the Canada Evidence Act” (David Tanovich, Louis Strezos and S. Casey Hill, McWilliams’ CanadianCriminal Evidence, loose-leaf (Rel 2021-No 1) 5th ed (Toronto: Thomson Reuters, 2013) at para 32:20 (WL) [McWilliams’]).

This trialdid not involve eyewitness identification. [20] Recognition evidence is another form of identification evidence that may be tendered at trial. It most often occurs where theCrown asks a witness with prior familiarity or knowledge of the accused to identify him or her from a video or still photograph presentedto that witness at trial.

A helpful explanation of this type of evidence is found in R v Murtaza, 2020 ABCA 158, 453 DLR (4th) 550[Murtaza]: [6] … [Recognition evidence] depends wholly on the witness’ prior interaction with the accused – other than as an eyewitness to thealleged criminal act – and his or her opinion, based on the witness’ prior interaction with the accused, that the person depicted in a videoor photograph of the crime and the accused are the same person. [21] Recognition evidence is based on a witness’ prior interaction with the accused. It is this prior interaction or knowledge thatrenders such evidence admissible.

In the absence of any prior interaction, the evidence is nothing more than inadmissible opinionevidence. [22] As a general rule, where recognition evidence is tendered, a voir dire must be held to (

a) ensure the witness has sufficientfamiliarity with the accused, (

b) is able to view a photo or video presented in court in a manner that is helpful to the trial judge, and (c)there is no prejudice to the accused from an inquiry into the prior acquaintance. See, for example, R v Leaney, (SCC),[1989] 2 SCR 393 [Leaney], and R v Berhe, 2012 ONCA 716 at para 24, 292 CCC (3d) 456.

That is, “this type of non-expert opinionevidence is admissible provided that the witness has a prior acquaintance with the accused and is thus in a better position than the trier offact to identify the perpetrator” (R v Brown (2006), (ON CA), 219 OAC 26 (CA) at para 39). [23] The last of the three recognized forms of identification evidence is where the trier of fact is invited to make his or her ownidentification by comparing still photos or a video to the accused as he or she appears in court.

In R v Nikolovski, (SCC),[1996] 3 SCR 1197 [Nikolovski], the Supreme Court recognized the legitimate use of video evidence by a trier of fact to identify anaccused. The Supreme Court commented that video evidence can often present clear and convincing evidence of identification that a trierof fact can use as the sole basis for identifying the accused in the courtroom as the perpetrator of the crime. See also R v Hill, 2005 NSCA108, 200 CCC (3d) 218, and R v Delorme, 2017 SKCA 3. [24] In Nikolovski, high-quality video from a surveillance camera captured the accused robbing a store.

Neither the store clerk nor apolice officer who knew Mr. Nikolovski could be certain about the identity of the accused as the robber. The trial judge viewed the videocarefully, compared it to Mr. Nikolovski, who was present in court, and, based on that comparison, determined that he was the person inthe video. The Supreme Court held that a trier of fact may properly rely on video evidence to establish identity, even where identity isuncorroborated by other evidence, as long as the video is sufficiently probative and of sufficient quality.

The Supreme Court said asfollows: [22] So long as the videotape is of good quality and gives a clear picture of events and the perpetrator, it may provide the best evidence ofthe identity of the perpetrator. It is relevant and admissible evidence that can by itself be cogent and convincing evidence on the issue ofidentity. Indeed, it may be the only evidence available. For example, in the course of a robbery, every eyewitness may be killed yet thevideo camera will steadfastly continue to impassively record the robbery and the actions of the robbers.

Should a trier of fact be denied theuse of the videotape because there is no intermediary in the form of a human witness to make some identification of the accused? Such aconclusion would be contrary to common sense and a totally unacceptable result. It would deny the trier of fact the use of clear, accurateand convincing evidence readily available by modern technology.

The powerful and probative record provided by the videotape shouldnot be excluded when it can provide such valuable assistance in the search for truth. … [23] It is precisely because videotape evidence can present such very clear and convincing evidence of identification that triers of fact canuse it as the sole basis for the identification of the accused before them as the perpetrator of the crime. It is clear that a trier of fact may,despite all the potential frailties, find an accused guilty beyond a reasonable doubt on the basis of the testimony of a single eyewitness.

Itfollows that the same result may be reached with even greater certainty upon the basis of good quality video evidence. Surely, if a juryhad only the videotape and the accused before them, they would be at liberty to find that the accused they see in the box was the personshown in the videotape at the scene of the crime committing the offence.

If an appellate court, upon a review of the tape, is satisfied that itis of sufficient clarity and quality that it would be reasonable for the trier of fact to identify the accused as the person in the tape beyondany reasonable doubt then that decision should not be disturbed. Similarly, a judge sitting alone can identify the accused as the persondepicted in the videotape. (Emphasis added) [25] The assessment of a video and its overall value or shortcomings “is a matter that lies particularly within a trial judge’s function”(Delorme at para 38). 2. Recognition evidence was tendered by the Crown [26] Mr.

John submits that Cst. Reid and Cst. Kelan Henderson each tendered recognition evidence, and that this evidence wasadduced at trial without a voir dire to determine its admissibility. By failing to hold a voir dire, he argues, the trial judge committed areversible error. Mr. John’s argument is grounded on the following passage from his factum: [32] … Reid had pulled a photograph from the police database of “John Wesley or Wesley”.

The Crown then, through leading questions,we suggest, led the officer to state that the man in the police photograph matched the individual in the Petro-Can video. (T27) The officerthen makes a dock identification of the accused in the prisoner box and said that the person in the photo was the same man in the policephoto … .

[ 27 ] As I see it, whether the trial judge erred in the manner suggested by Mr. John turns on the answer to the following two questions: (

a) was recognition evidence tendered by the Crown at the trial? and (

b) if so, did the trial judge rely on that evidence to identify Mr. John as the perpetrator of the criminal acts? [ 28 ] I begin with the observation that defence counsel at trial (who is not the same counsel on appeal) did not object to any of the testimonial evidence proffered by the two police officers or to the admission of any of the still photos, surveillance videos, the GPS tracking data or exhibit P-5 (the police database photo of Wesley John).

Further, counsel spent a good deal of time in her closing submission attempting to undermine the recognition evidence but did not suggest it should not be taken into account. [ 29 ] Cst. Reid testified about the investigative steps he undertook after first observing the Synergy video to try to identify the individuals depicted in it. He explained how the Regina Police Service had been able to lift a fingerprint from the recovered stolen SUV and, from there, connected the fingerprint to Ms. Wesaquate. Using that baseline information, Cst.

Reid went through an RCMP database to examine other police files involving Ms. Wesaquate. He found one break and enter incident where a medication bottle, which was discovered at the scene of the crime, bore the name of Wesley John. With this information in hand, Cst. Reid was able to obtain a photograph of Wesley John from the police database, which, as mentioned, was entered as exhibit P-5 at trial. The testimony of Cst.

Reid that followed is reproduced below: A … So when I opened up his entity on our police database there was a picture there of him and it -- with the video that we had from the Petro-Can along with that picture that was on the police database at that point I was -- I was very certain that that was the male that I was looking for. I spoke with Constable Rushwick about it as well. Q Okay. I’d just like to show you a photograph -- A Sure. Q -- here. Do you recognize this photo? A Yes, I do. Q Okay. What is that photo? A That is the photo that -- on the police database that I -- that I found. Q Okay. And photo 2?

A John Wesley. Or Wesley, sorry. Q Okay. So you pulled this photograph up in your database and you were of the belief that that matched the individual that you saw in the Petro-Can; is that correct? A Yes, correct. [ 30 ] Up to this point in his testimony, I take Cst. Reid to have simply explained how he connected the fingerprint from the stolen SUV to the man in P-5; and how, as he said, he was certain “that was the male that [he] was looking for”. This testimony was no more than a background narrative explaining how the police came to arrest Mr. John. [ 31 ] Cst.

Reid was then asked to make an in-dock identification of the accused by comparing the individual depicted in P-5 to the people present in the court room: Q Okay. And sorry, I’d actually like to take Exhibit P-5 if I could. Thank you. If you could just comment -- if you could describe the individual that you saw in that photo if there’s anything identifying or how you describe what that person looked like. A So in this photo I would say the male looks to be in his -- around 50 years of age, late forties, early fifties, short dark hair, clean shaven, no piercings, no noticeable tattoos, nothing like that.

Just -- yeah, like, nothing overly distinctive about -- like any scars or tattoos or anything like that. Q Okay. If you were able to make a comparison about the person in that photo with anyone in this courtroom, would you be able to? A Yes, I would. Q Okay. And how would you do that, or who would you consider? A I would consider the gentleman, Mr. John, that’s sitting in the box there. Q Okay. A His -- it’s the same hairstyle, same colour, again clean shaven, same skin complexion and -- Q Appears to be the same individual -- A Yeah, appears to be the same individual to me as in the photo -- Q Okay.

A --and the video. Q Would you be able to rate your confidence in that? A Yes. Q Okay. How confident do you feel about that? A Extremely confident, like a hundred percent confident. [ 32 ] The most reasonable

interpretation of this evidence, considered in its totality, is that Cst. Reid was satisfied they had arrested the right person because of the similarity between the person in the courtroom and the person in the Petro-Canada store video. That went beyond explaining the investigative process. [ 33 ] Cst. Henderson also gave evidence that compared the person in P-5 to the person shown in the video. The following questioning occurred during his examination-in-chief: Q Okay. Is there any other information that you wanted to share with us today that I haven’t asked you?

A Well, I guess to make the positive ID of the male in the jacket, there was a still that I viewed of his face fairly clearly and I compared it to a known picture on our database – Q Okay.

A -- to make the ID . Q Okay. … Q Does this picture look familiar to you? A That’s the one on our database I used as a comparison, yes. Q Okay. So this picture that you’re looking at right now and part of the Exhibit P-5 is the same photograph that was in the RCMP database when you pulled up information for who? A For Wesley John, for the Wesley John Senior, I guess. Q Okay. And you compared this photo to what? A To the still -- to the still footage that I viewed from the Langham Petro-Can. Q Okay. A Where the male in the yellow jacket has his face uncovered. Q Okay.

And you thought there was a connection between that photograph and the video footage or the stills that you viewed from the Langham Petro-Can; is that correct? A Yes, that’s the same, yeah. (Emphasis added) [ 34 ] This testimony differs from that of Cst. Reid. It is nothing more than Cst. Henderson testifying to the fact that he had used the photo that was entered as P-5 to identify Mr. John by comparing the individual in that photo to the individual depicted in the Petro-Canada store video for purposes of arrest. It explained the investigative process.

Constable Henderson was not asked for and did not offer an opinion as to whether the person in the video or the person in the photograph was the person in the courtroom. [ 35 ] In my view, Cst. Reid’s testimony strayed into the realm of recognition or opinion evidence. Constable Henderson’s did not. As I will detail, that is how Cst. Reid’s testimony was understood by the Crown and the trial judge. 3. The trial judge considered opinion evidence from the police when identifying Mr.

John [ 36 ] The next question, then, is whether the Crown invited the trial judge to rely on that opinion to prove identity, and whether the trial judge did so. In my view, that is what occurred. Let me explain. [ 37 ] First, Crown counsel invited the trial judge to independently identify the accused from the Petro-Canada store video. However, she also referred to the officers’ opinion evidence in this context, as is apparent from the following: And it’s at this point that the Petro-Can, we can finally see a clear image of the face of the individual which the Crown submits is Wesley John.

The officers provided some comparison photos. We have a PROS printout from the RCMP database that provides a face of Wesley John.

Now, we didn’t ask the officers to give us very much opinion evidence regarding the similarities and that’s because the Crown is of the view that the trier of fact is in just as good of a position to take a look at the video surveillance and the photographs as well as the accused here today in person and make a determination about whether or not that identity can be proven. (Emphasis added) [ 38 ] In making this submission, Crown counsel was no doubt invoking the principle in Nikolovski by urging the trial judge to independently identify the accused through his own assessment of identity.

However, Crown counsel was also confirming that the Crown had asked the officers to give “opinion evidence regarding the similarities”, and immediately referred to the video, the photographs and the person in court. She did not suggest the trial judge should not rely on that opinion evidence when determining the identity of the person in the surveillance videos. [ 39 ] Second, it is clear from the record that the trial judge took account of Cst. Reid’s opinion that Mr.

John was the person in the video and, indeed, of the evidence of both officers that they had concluded the person in P-5 was the person in the video. Addressing Mr.

John directly, the trial judge said as follows: Now, the photos taken at the Petro-Can or the videos taken at the Petro-Can were stopped on numerous occasions and I had the -- the ability to see the man looking towards the camera at one point, looking to the left of the camera or to the right of the camera at another point and walking both in and out then turning on several occasions with the five clips that were viewed. … I have to make a determination here today only on whether or not I’m satisfied beyond a reasonable doubt that the man who was in the Forbes -- or pardon me, was in the Petro-Can is you.

I was able to see his face . The officer saw it as well. They both felt that there was a direct resemblance to the photograph of you in P-5. I had the opportunity and you saw me looking at you on numerous occasions. I had the opportunity to view the video, see that man and although there’s some distortion as it appears both the male and the female at the Petro-Can are slightly shorter and wider, it’s the type of video being used as opposed to the male and the female that went into the Forbes Bros.

They appeared to be a little bit taller and a little bit slimmer. … The -- the view at Langham, Saskatchewan in the Petro-Can, I looked at the photograph -- or at the video and I saw the face that was in there and I turned to you on several occasions to compare. I am satisfied that this is your photograph in P-5. But even without this I would be satisfied that you were the man who went into the Petro-Can station in Langham, Saskatchewan and made purchase -- made purchases along with the woman.

This convinces me photograph P-5, I’m satisfied it’s you standing -- sitting here looking at it, looking at you, this is you . And this is the man that was in the Langham Petro-Can station and on video. (Emphasis added) [ 40 ] The passages that are highlighted demonstrate that the trial judge considered the officers’ opinion evidence when deciding whether Mr. John was the person in the Petro-Canada store video.

4. The trial judge independently identified Mr. John [ 41 ] The remaining question is whether the decision of the trial judge should be upheld despite the fact that he considered evidence that should not have been admitted without a voir dire . In my view, the trial judge’s reasons, read as a whole, support the conclusion that he independently identified Mr. John as the perpetrator of the break-ins by comparing the person depicted in the Petro-Canada store video to the individual present in court.

He spoke of getting a clear view of the face of the person in the Petro-Canada store video from a number of angles and from stopping the video from time to time. He spoke of looking at the video and turning to look at Mr. John on several occasions. Although he referred to P-5 more than once, he also explicitly said – referring to P-5 – that “even without this I would be satisfied … this is you”. This was an oral decision. The trial judge stumbles and misspeaks; but, on the whole of it, his reasons confirm that he had independently concluded that Mr.

John is the person in the Petro-Canada store video by directly comparing the video to the accused as he appeared in court. [ 42 ] In Leaney , the Supreme Court found the trial judge had erred in failing to conduct a voir dire before admitting recognition evidence but, nonetheless, upheld the verdict because the trial judge had explicitly stated that his finding was reached independently of the recognition evidence.

The majority addressed this issue as follows (at 415–416): Given the trial judge’s clear statement that he arrived at his conclusion as to identity independently of the evidence of the police officers, their evidence assumes the character of mere surplusage, which does not vitiate the judge’s conclusion that Leaney was one of the persons shown on the video screen. To put it another way, the judge, properly instructing himself, concluded beyond a reasonable doubt that Leaney participated in the break-in.

The fact that the judge had before him inadmissible evidence does not impair that independent conclusion, if he did not rely on the inadmissible evidence in reaching it. … There is no appearance of unfairness where the judge expressly arrives at his or her conclusion on the critical issue independently of the inadmissible evidence. Judges often hear evidence which turns out to be inadmissible, for example on voir dires .

So long as the judge does not consider such evidence in arriving at his or her independent conclusion, no unfairness can be said to arise, nor has there been a miscarriage of justice. [ 43 ] The dissent also made the following remarks (at 405–406): Furthermore, the trial judge made it clear that he had arrived at his conclusion irrespective of what the sergeant or the others had to say. While no doubt is cast on the sincerity of the judge’s assertion, one might argue that the circumstances cast doubt on its accuracy or at least on the appearances thereof.

We constantly ask jurors to disregard what they know through reading the papers or viewing telecasts of the news; we tell them to disregard certain answers given by witnesses; we tell them that while certain evidence may be used for one purpose, we will trust them not to use it for another. I do not see why judges cannot be trusted for same.

In fact, our judges hold voir dires on confessions and sometimes reject them on grounds that in no way cast doubt on their accuracy; they are expected to and are accepted as being capable of deciding innocence or guilt without using their knowledge of the accused’s admission of guilt in the rejected confession. So, if Plomp Prov. Ct. J. says that he identified Leaney on the video independently and without the aid of the identification of Sergeant Cessford, I am satisfied that there has not been any substantial wrong or miscarriage of justice, nor appearance thereof.

I would therefore uphold Leaney’s conviction for the break and enter. See also R v Hudson , 2020 ONCA 507 at paras 46–47 , 391 CCC (3d) 208, and R v Panghali , 2012 BCCA 407 at paras 74–76 , 328 BCAC 256 [ Panghali ].

Both Hudson and Panghali confirm that a verdict may be upheld even if the trial judge has referred to recognition evidence from a police officer that has been improperly admitted if it is clear from the reasons that the trial judge would have reached the same conclusion regardless. [ 44 ] In light of all this, despite the fact that the Crown was permitted to lead recognition evidence without a voir dire , I would not give effect to this ground of appeal. B. Hearsay evidence [ 45 ] In his second ground of appeal, Mr. John asserts the trial judge relied on hearsay evidence in drawing an inference of identity.

At paragraph 31 of his factum, he reproduces a portion of Cst. Reid’s testimony with the underlined parts presumably intended to identify the impermissible hearsay evidence: Q. MS. POCHA [Crown counsel]: Okay. Thank you for going through that with us. So, after you observed this video surveillance, what were the next steps that you took? A. After that I spoke with Constable Rushwick regarding the footage that we had. He advised to try to speak with some of the other sections that we have available to us to see if anybody -- send out an intelligence email to try to ID the individuals.

With regards to the male and the female in the video, once -- once the vehicle was recovered in Regina, our FIS unit , our forensic identification section, they processed that vehicle and they were able to obtain a fingerprint from that vehicle. Q. And do you know about what time that the vehicle was recovered in Regina? A. It was recovered September 30th, that Monday morning just shortly after the call came in. Regina Police Service recovered the vehicle upon our request. Q. Okay. And to be clear when we’re talking about that vehicle, what vehicle are you referring to? A.

Oh, sorry, the white -- white SUV that was taken from the Forbes Bros. Q. Okay. Thank you. Okay. And so you were telling us about the fingerprints? A. Yes. So the -- there was a fingerprint that was lifted by our FIS department from that vehicle. Once they processed the fingerprint and their findings they were able to link that fingerprint to a female, Lindsay Wesaquate . She and -- sorry, they -- once they were able to identify the female she did match the person that was in our videos .

At that point with one of the two suspects identified I was able to go through our PROSE -- our police database and review files I that she had been linked to as long -- within the RCMP database. Q. And these are these prior --

A. Yes. Yeah, they could have --Q. -- events that Lindsay was involved in?A. correct.Q. Okay.A. Yeah, yeah. Any prior events so that Lindsay was involved in I was able to review those. There was oneincident that I did review that she was involved in out of Moosomin, Saskatchewan.Q. M-hmA. It was reported as a break and enter. The member that attended and dealt with that -- that call, they found a[tthe] scene a medication bottle with a male’s name on it, a Wesley John.Q. Okay.A. So that was one of the files.

So when I opened up his entity [sic] on our police database there was a picturethere of him and it -- with the video that we had from the Petro-Can along with that picture that was on thepolice database at that point I was -- I was very certain that that was the male that I was looking for. I spokewith Constable Rushwick about it as well.Q. Okay, I’d just like to show you a photograph --A. Sure.Q. -- here. Do you recognize this photo?A. Yes, I do.Q. Okay. What is that photo?A. That is the photo that -- on the police database that I -- that I found.Q. Okay. And photo 2:A. John Wesley. Or Wesley, sorry.Q.

Okay, So you pulled this photograph [up] in your database and you were of the belief that that matched theindividual that you saw in the Petro-Can; is that correct?A. Yes, correct.… Q. MS. POCHA: Okay, so you see this photo. And then are there any other steps that you take?A. From there I just consolidated with my supervisor regarding my findings to get his direction at that pointand from there we tried to have Regina Police Service because I believe it was an address in the Regina areathat was our last known address that we had for that individual for them to try to locate them.

So we endedup just putting -- putting the file to warrant in case he was found by another agency if it wasn’t us.Q. Okay. And sorry, I’d actually like to take Exhibit P-5 if I could. Thank you. If you could just comment -- ifyou could describe the individual that you saw in that photo if there’s anything identifying or how youdescribe what that person looked like.A. So in this photo I would say the male looks to be in his -- around 50 years of age, late forties, early fifties,short dark hair, clean shaven, no piercings, no noticeable tattoos, nothing like that.

Just -- yeah, like, nothingoverly distinctive about -- like any scars or tattoos or anything like that.Q. Okay. If you were able to make a comparison about the person in that photo with anyone in this courtroom,would you be able to?A. Yes, I would.[…]Q. Okay.A. His -- it’s the same hairstyle, same colour, again clean shaven, same skin complexion, andQ. Appears to be the same individual –A. Yeah, appears to be the same individual to me as in the photo --Q. Okay.A. -- and the video. (T28) [46] I would not give effect to this argument. With respect, none of this testimony is hearsay.

Constable Reid’s evidence was offeredas a narrative and not tendered for the truth of its content: R v Ukrainetz, 2012 SKCA 29, 385 Sask R 317, leave to appeal to Sask CArefused, 2012 SKCA 29. Constable Reid was not trying to establish that the fingerprint belonged to Ms. Wesaquate or that the medicationbottle belonged to Mr. John. Read as a whole, the evidence was merely tendered to explain how the investigative events unfolded byrecounting the steps that were taken by the police and the information gathered by them, all of which led to the arrest of Mr. John. [47] One final note. Although Mr.

John’s hearsay argument was not particularly well developed, he could be interpreted to arguethat the police recognition evidence was hearsay and therefore presumptively inadmissible. Whether recognition evidence is hearsayappears to be an unsettled point of law: see, for example, R v Starr, 2000 SCC 40, [2000] 2 SCR 144; R v Tat (1997), (ON CA), 103 OAC 15 (CA); and McWilliams’ at para 32:30.20. That said, whether it was inadmissible hearsay evidence does not reallymatter because the trial judge ultimately determined the question of identity without relying on the impugned testimony. C.

Misapprehension of the evidence [48] Under his third ground of appeal, Mr. John asserts the trial judge misapprehended key pieces of evidence and, as a result, drewan improper inference that the male seen in the Synergy photos and Forbes video is the same person as the male in the Petro-Canada storevideo, based solely on the similarity of their clothing. [49] It is not entirely clear from Mr. John’s factum if this argument is framed around s. 686(1)(a)(

i) of the Criminal Code, whichspeaks to a verdict being unreasonable or not supported by the evidence, or s. 686(1)(a)(iii), which deals with a miscarriage of justice.Since Mr. John anchors his argument on the dicta from R v Mahmood, 2011 ONCA 693, 284 OAC 94, leave to appeal to SCC refused,; R v Lohrer, 2004 SCC 80, [2004] 3 SCR 732 [Lohrer]; and R v Morrissey (1995), (ON CA), 80OAC 161 (CA) [Morrissey] – all cases about a misapprehension of evidence giving rise to a miscarriage of justice – I will approach hisargument accordingly.

[ 50 ] Morrissey discusses the concept of a misapprehension of evidence in these terms: “A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence” (at para 83). Deciding whether to set aside a verdict based on a misapprehension of the evidence requires an appellate court to assess the nature and extent of the error and its significance in relation to the verdict.

The alleged misapprehension must relate to material, not peripheral, evidence that was essential to the trial judge’s reasoning process. This is a stringent standard to meet, as the Supreme Court noted in Lohrer : [2] Morrissey , it should be emphasized, describes a stringent standard. The misapprehension of the evidence must go to the substance rather than to the detail. It must be material rather than peripheral to the reasoning of the trial judge.

Once those hurdles are surmounted, there is the further hurdle (the test is expressed as conjunctive rather than disjunctive) that the errors thus identified must play an essential part not just in the narrative of the judgment but “in the reasoning process resulting in a conviction”. [ 51 ] Mr. John takes issue with the chain of reasoning applied by the trial judge and the weakness in the circumstantial evidence that he says were used to link the male in all three videos to him.

In his factum, he asserts that the inference of identity drawn by the trial judge was undermined for these reasons: [49] … it is a misapprehension of evidence to draw an inference that the male in scenes A and B is the same male in C, because of the similarity in the clothing worn by a male in all 3 scenes, given (

a) the differences in time, place, (

b) the size and height of the male, (

c) there is no facial identification possible in scenes A and B (

d) there is no link between the male in B and the white Dodge truck beyond scene B and (

e) there is no evidence that the male in B was ever associated with the white van with stripes once it left the scene in B. For reference purposes, “A” refers to the Synergy photos, “B” refers to video footage from the Forbes property, and “C” refers to the video footage and still photographs from the Petro-Canada store. [ 52 ] The trial judge’s reasoning with regard to identity hinged on his identification of the male in the Petro-Canada store video, which I have discussed above. I fail to see how his conclusion that Mr. John was the person in that video resulted from any misapprehension of the evidence.

Given that the trial judge was entitled to compare and contrast the man in the Petro-Canada store video with Mr. John as he presented himself in the courtroom, I am hard-pressed to see how this amounts to a misapprehension of evidence. As Nikolovski makes clear, “videotape evidence can present such very clear and convincing evidence of identification that triers of fact can use it as the sole basis for the identification of the accused before them as the perpetrator of the crime” (at para 23). Mr.

John does not take issue with the trial judge’s appreciation of the law nor does he suggest the Petro-Canada store video was of poor quality, apart from the limited distortion that was recognized by the trial judge. [ 53 ] I next turn to the connection made by the trial judge between the male shown in the Petro-Canada store video and the male depicted in the Synergy and Forbes videos. The trial judge was satisfied it was the same male at all three locations because (

a) the same truck was seen at both the Lashburn and the North Battleford locations, (

b) the male wore a black hooded coat with three yellow stripes down the sleeves, dark shoes with white soles, construction gloves with yellow at the wrist and white in the hand portion, (

c) the male was accompanied by a female in all three videos, who was seen wearing the same clothing in each, with particular notice taken of the distinctive red clothing underneath her jacket in both the Forbes and the Petro-Canada store videos, and (

d) the temporal proximity of the events. [ 54 ] Mr. John provides several examples of other evidence to illustrate how the trial judge is said to have misapprehended the evidence in making that connection. [ 55 ] First, Mr. John points to the differences “in time and place” with regard to all three locations. The trial judge was aware that the videos and photos were taken from different properties and captured at different times.

Although he did not dwell on the significance of this fact, it is equally plausible that he saw the timing of events, the path of travel and the continuity of the male and female at all three locations, as tying these events together. He did not misapprehend this evidence. [ 56 ] Mr. John also suggests the trial judge should have considered the difference in the height and size of the male and the absence of facial recognition in the Synergy photos and Forbes video. With respect, the trial judge commented on some distortion in the Petro- Canada store video that made the people appear slightly shorter and wider.

However, notwithstanding this slight distortion, he found himself able to draw a meaningful comparison between the male in all three sets of photos and videos. I had the opportunity to view the Petro-Canada store video. I, too, found it to be of good quality and noted a slight distortion of the kind mentioned by the trial judge. [ 57 ] In any event, it is not unusual for surveillance videos or photos, taken from different angles and distances by devices of varying quality, to differ somewhat in their portrayal of the people they capture.

An assessment of the quality of a video, including its “inherent value, deficiencies, or shortcomings” rests with the trial judge ( Delorme at para 38 ) and whether it is of “sufficient quality to form the basis for identification” is a finding of fact ( R v Benson , 2015 ONCA 827 at para 16 , 333 CCC (3d) 180 [ Benson ]).

In any event, a trial judge’s reliance on a poor quality surveillance video, in combination with other circumstantial evidence , may be sufficient to make a positive identification: Benson at para 29 and Delorme at paras 37–41 . [ 58 ] The trial judge had the benefit of the circumstantial evidence discussed above, along with the GPS tracking information that was not mentioned in his reasons. That information placed the stolen SUV at the Petro-Canada station shortly after the break-in at the Forbes property. [ 59 ] Finally, Mr. John points to the absence of the truck in the Petro-Canada store video.

In my view, his argument regarding the

significance of this ignores the cumulative weight of the circumstantial evidence. The truck was seen in the video footage from both the Synergy and Forbes properties, where the break-ins had occurred. While the truck was not visible in the video footage taken from the Petro-Canada store, the GPS evidence clearly established that the stolen SUV, which had been taken from the Forbes property, was present at the same time that the male and female were seen at the Petro-Canada.

Those persons, as mentioned, were wearing clothing that was strikingly similar to that worn by the perpetrators in the video surveillance footage captured at the Synergy and Forbes properties. To put that another way, a male person and a female person, wearing clothing that was nearly identical to that worn by the perpetrators of the Synergy and Forbes break-ins, were seen at the Petro-Canada store at the same time GPS tracking data showed the SUV taken from the Forbes break-in was also at the Petro-Canada station.

The absence of the truck from the Petro-Canada store video is of little significance when the totality of this evidence is considered. [ 60 ] The trial judge’s inference about the identity of the accused is logically and rationally rooted in the evidence. He did not fail to consider a material matter that would have changed the outcome. Any weakness in the video or photographic evidence was overpowered by the strength and totality of the circumstantial evidence adduced at trial. Mr. John has not persuaded me that the trial judge misapprehended any material evidence.

As I see it, he simply disagrees with the trial judge’s assessment of the evidence and his findings of fact. D. Unreasonable verdict and failure to give reasons [ 61 ] Mr. John’s submissions in relation to unreasonable verdict and insufficient reasons are framed around much the same arguments and, as such, I will address these grounds together. [ 62 ] A verdict is unreasonable within the meaning of s. 686(1) (a)(

i) of the Criminal Code if the following holds: (

a) it could not reasonably have been rendered by a properly instructed judge or jury (see R v Biniaris , 2000 SCC 15 , [2000] 1 SCR 381); or (

b) the trial judge has drawn an inference or made a finding of fact essential to the verdict that is (

i) plainly contradicted by the evidence relied on by the judge in support of that inference or finding, or (ii) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge ( R v R.P. , 2012 SCC 22 at para 9 , [2012] 1 SCR 746; R v Sinclair , 2011 SCC 40 at paras 4 , 16 and 19–21, [2011] 3 SCR 3; and R v Beaudry , 2007 SCC 5 , [2007] 1 SCR 190). [ 63 ] Care must be taken to distinguish between a challenge to a trial judge’s factual determination and a challenge to the reasonableness of the verdict. As I see it, Mr.

John’s arguments, properly understood, amount to an attack on the trial judge’s findings of fact and inferences drawn from those facts. Appellate intervention with findings of fact is permissible only where those findings are the product of palpable and overriding error: R v Clark , 2005 SCC 2 at para 9 , [2005] 1 SCR 6, and R v Gagnon , 2006 SCC 17 at para 10 , [2006] 1 SCR 621. [ 64 ] In making this argument, Mr. John emphasizes what he refers to as the frailties of identification evidence. He says the trial judge failed to direct himself to the danger of relying on such evidence. However, the cases Mr.

John identifies to advance this argument all involve eyewitness testimony. As mentioned above, this trial did not involve eyewitness testimony. Identification was made directly by the trier of fact with the aid of video evidence. Mr. John’s assertion that it is a reversible error for a trial judge, sitting in a judge-alone trial, to fail to instruct himself on the frailties of video evidence, finds no support in the jurisprudence. [ 65 ] Two further points deserve mention in connection with this argument.

First, a trial judge is presumed to know the law; a failure to self-instruct is therefore not indicative of error. Second, as discussed above, a trier of fact may properly rely on video or photographic evidence to make an in-court identification ( Nikolovski at paras 22–23 ). Nothing requires a trier of fact to treat such evidence as if it were eyewitness testimony. The trial judge was satisfied by the quality and clarity of the video evidence, albeit noting some element of distortion.

As such, there is no danger that the conviction was based on frail identification evidence. [ 66 ] As mentioned, the only issue at trial was identity. The trial judge stated the basis for his finding of guilt. He made clear that by comparing Mr. John in the prisoner’s box with the man in the Petro-Canada store video, he was convinced beyond a reasonable doubt that Mr. John was the person depicted in that video. In connecting Mr.

John in the Petro-Canada store video to the male at the Synergy and Forbes properties, the trial judge also made clear that he relied on the other probative evidence, notably the consistent clothing worn by the male, to conclude that the man in the Petro-Canada store video was the same man as the person in the Synergy and Forbes photos or videos. The trial judge acknowledged that the evidence was circumstantial. The fact the trial judge may not have discussed all of the evidence does not mean he ignored it.

If he failed to comment on any evidence of significance, it was the GPS tracking information that placed the SUV at the Petro-Canada station at the same time as the man shown in the video, but the GPS evidence could only have hurt Mr. John in any event. [ 67 ] To conclude on this point, I find no support in the record for the suggestion that a properly instructed trier of fact could not have reached this verdict.

Neither is there support for the conclusion that the trial judge drew an inference or made a finding of fact that was plainly contradicted by the evidence, incompatible with evidence that was not contradicted, or incompatible with evidence he had not rejected. [ 68 ] With that, I turn to Mr. John’s argument regarding the sufficiency of the trial judge’s reasons.

The law with respect to insufficient reasons was recently expressed in R v Hoskins , 2021 SKCA 23 [ Hoskins ]: [79] It is an error of law for a trial judge to fail to provide an explanation for their decision that is “sufficiently intelligible so as to permit appellate review” ( R v Sheppard , 2002 SCC 26 at para 1 , [2002] 1 SCR 869 [ Sheppard ]). The test for evaluating sufficiency of reasons is based on a “functional context-specific approach to the adequacy of reasons in a criminal case” ( R v R.E.M. , 2008 SCC 51 at para 35 (1), [2008] 3 SCR 3 [ R.E.M. ]).

This means a trial judge’s reasons “must be sufficient to fulfill their functions of explaining why the accused was convicted or acquitted, providing public accountability and permitting effective appellate review” (at para 15): also see R v Braich , 2002 SCC 27 at para 31 , [2002] 1 SCR 903 [ Braich ].

[ 69 ] As this Court went on to discuss in Hoskins , explaining the why of a decision, does not require a trial judge to address each and every argument and piece of evidence “so long as the findings linking the evidence to the verdict can be logically discerned” ( R v R.E.M. , 2008 SCC 51 at para 20 , [2008] 3 SCR 3). See also R v G.F. , 2021 SCC 20 at paras 66–75 , and R v R.A ., 2017 ONCA 714 at para 45 , 421 DLR (4th) 100, aff’d 2018 SCC 13 , [2018] 1 SCR 307. [ 70 ] The trial judge did not err by failing to mention each and every piece of evidence or the absence of evidence.

While the trial judge did not explore what Mr. John refers to as inconsistencies in the videos, his reasoning reveals that he found them to be negligible at best. The alleged weaknesses in the evidence Mr. John points to either do not exist or were overpowered by the other evidence that was available to the trial judge. [ 71 ] In the matter at hand, the trial judge’s reasons, when read in conjunction with the evidence, clearly reveal the basis for the verdict. In that regard, the reasons both inform Mr. John why he was found guilty and allow for meaningful appellate review.

In short, the trial judge’s reasons were sufficient; consequently, there is no error in this respect. IV. CONCLUSION [ 72 ] Mr. John’s appeal is dismissed. “Schwann J.A.” Schwann J.A. I concur. “Barrington-Foote J.A.” Barrington-Foote J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.