



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Berhe, 2012
    ONCA 716

DATE: 20121026

DOCKET: C54719 M41393

Rosenberg, Blair and Tulloch JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Yohannes Berhe

Appellant

Heather Pringle, for the appellant

Greg Skerkowski, for the respondent

Heard: August 14 and 17, 2012

On appeal from the endorsement of Justice Michael Code of
    the Superior Court of Justice dated November 18, 2011, with reasons reported at
    2011 ONSC 6815 (CanLII).

R.A.
    Blair J.A.:

Overview

[1]

This appeal involves the test for admissibility of non-expert
    recognition evidence deriving from the examination of a photograph or
    videotape, and the application of that test.

[2]

Mr. Behre was convicted on several counts alleging indecent exposure of
    his genital parts in public and to a person under the age of 16 for a sexual
    purpose. He was also convicted on two counts of breach of probation. The key
    evidence supporting his conviction was the non-expert, opinion evidence of a
    Toronto Transit Commission officer who testified that he was able to identify
    Mr. Behre from a video taken at the time of the alleged offences because he was
    familiar with Mr. Behre from previous dealings with him.

[3]

Young J., at first instance, did not conduct a
voir dire
to
    determine the admissibility of this evidence, and during the sentencing hearing
    it became apparent that the TTC officers previous dealings with Mr. Behre
    consisted of one brief encounter two years prior when the officer had served
    Mr. Behre with a summons. It should be noted that defence counsel neither
    objected to the admissibility of the officers testimony nor requested a
voir
    dire
to test it. On appeal the Summary Conviction Appeal Judge, Code J.,
    concluded that a
voir dire
should have been conducted, but held that the
    recognition evidence would inevitably have been admitted on application of the
    proper criteria for the admissibility of such evidence. He applied the curative
    proviso found in s. 686(1)(b)(iii) of the
Criminal Code
and dismissed
    the appeal.

[4]

Although I am not persuaded that Code J. applied the wrong test for
    admissibility, I would allow the appeal and order a new trial because I am not
    convinced that, if a
voir dire
had been conducted, the evidence would
    have been inevitably admitted. It may or may not have been.

Facts

[5]

Except for the identity of Mr. Behre as the culprit, there is little
    dispute about the facts surrounding the incident.

[6]

A mother, father, and two young daughters, aged 9 and 3, were travelling
    at the Bathurst Street subway station in Toronto. A man rode immediately behind
    them up the escalator to the station. The mother became uneasy because the man
    seemed to be trying to get close to their 9-year-old daughter. While the family
    waited for a streetcar at the transfer point, he continued to stand close,
    apparently reading a newspaper held in front of him. A streetcar came by with
    enough room for one person but not for a family with two young children (the
    youngest was still in a stroller). The man did not take it.

[7]

Suspicious, the mother kept an eye on the man. She thought he was
    touching himself because of the way the newspaper was moving. This suspicion
    was confirmed when a gust of wind blew the newspaper upward, revealing the
    mans erect penis exposed through his zipper.

[8]

The mother ran to the father, who was standing a short distance away,
    and told him what happened. The father chased the man and caught him, but was
    unable to detain him and the man escaped.

[9]

A TTC surveillance video camera recorded the man and the family as they left
    the top of the escalator. Still photographs of a man matching the parents
    description and standing close to them on the escalator were created. The
    parents identified the person in the still photos as the perpetrator and the
    photos were circulated across the TTC security network.

[10]

The
    father was shown a photo line-up array that included Mr. Behres photograph,
    but was unable to identify him in the array. The mother was not shown a photo
    line-up. Both parents identified Mr. Behre as he sat handcuffed in the
    prisoners dock at trial.

[11]

A
    TTC officer with some experience in indecent act cases  Officer Welk  did
    identify Mr. Behre from the circulated photograph, however. Officer Welk
    testified that when he was shown the three still photographs taken from the
    surveillance video, he immediately recognized Mr. Behre with whom he had had
    previous dealings and investigations. He removed a photograph of Mr. Behre
    from his desk, explaining to the other officer that the desk photo was from a
    prior Toronto Police Field Investigation Report in 2007 and stating that he was
    able to recognize him from the document that he had secured from the file. Officer
    Welk also testified that he had previously met Mr. Behre in person.

[12]

No
voir dire
was conducted with respect to this identification evidence, as
    noted above, and the Crown did not lead any evidence before the trial judge as
    to the timing or particulars of that encounter. This may well have been because
    Crown counsel did not want to run the risk of eliciting evidence that would
    prejudice Mr. Behre by bringing out details of his previous encounters with TTC
    officers (including Officer Welk) in relation to similar offences. It became
    apparent after the conviction and during the sentencing proceedings, however,
    that Officer Welks face-to-face contact with Mr. Behre consisted of only one
    incident when he served Mr. Behre with a summons two years prior to the
    incident in question.

Analysis

The Test

[13]

It
    has long been accepted that non-expert, lay opinion to the effect that the
    witness recognizes the image of a person seen in a photograph or on videotape,
    based on a prior connection with that person, may be admissible in certain
    circumstances. This appeal is about the contours of the test for admissibility of
    that type of evidence.

[14]

In
R. v. Brown
, 215 C.C.C. (3d) 330 (C.A.), at para. 39, Rosenberg J.A.
    stated succinctly that this type of non-expert opinion evidence is admissible
    provided that the witness has a prior acquaintance with the accused and is thus
    in a better position than the trier of fact to identify the perpetrator. Rosenberg
    J.A. relied on the decision of the Supreme Court of Canada in
R. v. Leaney
,
    [1989] 2 S.C.R. 393, at p. 413, for that proposition, which I would
    characterize as the prior acquaintance/better position test. I would
    re-affirm that test.

[15]

Leaney
was an appeal from the Alberta Court of Appeal, which had upheld convictions in
    robbery-related offences based, in part, on the evidence of five police
    officers as to the identity of the two thieves depicted in a videotape of the
    break-in. The majority of the Supreme Court,
per
McLachin J., held that
    the evidence of four of the officers should not have been admitted because they
    had
no acquaintance
with the accused and were in
no better position
than the trial judge to say whether the persons shown in the video were the
    accused (at p. 413) (emphasis added). The identification evidence of the fifth
    officer was admissible, however, because he had known Leaney since childhood
    and had spent time with him shortly before the incidents. This evidence was
    found to be admissible even though a
voir dire
had not been held, as it
    should have been, because McLachlin J. was satisfied that the evidence was
    clearly admissible in any event (at p. 413). This was the solution adopted by
    the Summary Conviction Appeal Judge in the case at bar.

[16]

In
    the Alberta Court of Appeal, Harradence J.A. had dissented in
R. v. Leaney
, 1987 ABCA 206, 81 A.R. 247
. He
    advocated a more stringent test for recognition evidence of this sort, one calling
    for the witness to have sufficient, prior familiarity with the accuseds unique
    features to enable the witness to describe the accuseds idiosyncrasies as
    portrayed on the videotape. Harradence J.A. described the test in this fashion,
    at para. 39:

Notwithstanding this general principle of exclusion, there may
    be occasions when [non-expert] opinion evidence will be relevant and
    admissible. Where a witness is so familiar with the accused that he can
    identify idiosyncrasies of physical appearance or movement, not apparent to the
    trier of fact in the courtroom, that witness should be able to give his
    opinion. Two criteria must be satisfied. First the witness must be sufficiently
    familiar with the accused so as to be aware of the unique features which form
    the basis of the opinion. Second, the witness must be able to state with
    particularity what the idiosyncrasies are and show where and how they are
    revealed on the videotape. In this way the witness is contributing knowledge
    not otherwise available to the trier of fact. Consideration of these issues
    should take place within the context of a voir dire so the accused can
    challenge the evidence before it is admitted.

[17]

In
    a careful and thorough argument as
amicus curiae
, Ms. Pringle, urges us
    to adopt the Harradence criteria. She submits that they are (a) more consistent
    with the underlying first principles of opinion and identification evidence,
    (b) consistent with long-standing appellate jurisprudence requiring the ability
    to articulate the bases of opinion about identity, and (c) not rejected by
    either this Court in
Brown
or the Supreme Court of Canada in
Leaney
.

[18]

I
    would not accede to this request.

[19]

First,
    although the Harradence criteria were not expressly rejected in
Leaney
or
Brown
, more importantly, they were not adopted either. As far as I am
    aware, no appellate court, including the Alberta Court of Appeal, has adopted or
    followed the Harradence dissent (requiring sufficient prior familiarity with
    the accuseds unique features to enable the witness to identify the accuseds idiosyncrasies
    as portrayed in the videotape) in the 25 years since
Leaney
was decided
    in that Court.

[20]

Secondly,
    I am satisfied that the test as set out by the Supreme Court in
Leaney
and articulated by this Court in
Brown,
has the advantage of flexibility
    while at the same time providing sufficient criteria  familiarity with the
    person identified and being in a better position than the court to make the
    identification  to enable the court to perform its gate-keeping function for
    purposes of determining threshold admissibility. At the
voir dire
, the
    judge may or may not conclude that the potential witness is sufficiently
    familiar with the person whose identity is in question to be in a better
    position than the trier of fact to assist in making the identification. What
    weight is to be given to the evidence ultimately is a different consideration.

[21]

I
    do not see this as being inconsistent with the underlying principles of opinion
    and identification evidence, namely that opinion evidence is generally
    inadmissible because it is a fundamental principle of our system of justice
    that it is up to the trier of fact to draw inferences from the evidence and to
    form his or her opinions on the issues in the case:
R. v. K.(A.)
(1999), 45 O.R. (3d) 641 (C.A.), at para. 71. Nor do I see it as inconsistent
    with the view that there must be some basis for the opinion before it can be
    given any weight: see
R. v. Cuming
, 158 C.C.C. (3d) 433 (C.A.), at
    para. 21. Both of these benchmarks are well established. The prior acquaintance
    branch of the
Leaney/Brown
test enables the trial judge, on a
voir
    dire
, to sort out whether the potential witness is sufficiently familiar
    with the person sought to be identified to have some basis for the opinion 
    or, an articulated basis, as some have said
[1]
 and the better position branch ensures that the evidence will only be
    admitted if it is helpful to the trier of fact because the potential witness
    has some advantage that can shed light on the evidence in question.

[22]

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. In that respect, I
    think the following comment by Holmes J. in
R. v. Panghali
, 2010 BCSC
    1710, [2010] B.C.J. No. 2729, at para. 42, is apt:

Common experience teaches that people have vastly different
    abilities to identify and articulate the particular features of the people in
    their lives that they know, recognize, and distinguish on a regular basis. Where
    a witness has but little acquaintanceship with the accused, his or her
    recognition evidence may be of little value unless the witness can explain its
    basis in some considerable detail. But at the other end of the spectrum, the
    bare conclusory recognition evidence of a person long and closely familiar with
    the accused may have substantial value, even where the witness does not
    articulate the particular features or idiosyncrasies that underlie the
    recognition.

[23]

Arguably,
    then, the testimony of Officer Welk may have met the appropriate test for the
    admissibility of this type of recognition evidence  what I have referred to as
    the prior acquaintance/better position test.

Use of the Proviso

[24]

That
    said, I am not satisfied, as was the Summary Conviction Appeal Judge, that, had
    a
voir dire
been held, the recognition evidence of Officer Welk would have
    been inevitably admitted. While I agree, respectfully, that the trial judge
    erred in failing to hold a
voir dire
, I would not apply the s.
    686(1)(b)(iii) proviso to dismiss the appeal in the circumstances.

[25]

It
    is true that Officer Welk had the added advantage over the trial judge of
    having had prior contact with Mr. Behre when he was clean-shaven and not
    wearing eyeglasses  features of the perpetrator described by the parents. At
    the time of trial, Mr. Behre was bearded and wearing glasses.

[26]

If
    the trial judge had conducted a
voir dire
, however, he would have
    discovered that Officer Welk had met Mr. Behre in the course of his previous
    dealings and investigations concerning him only once  when he had served
    Mr. Behre with a summons about two years before this incident. The details of
    that one meeting could be important in helping the judge determine whether
    Officer Welk was sufficiently familiar with Mr. Behre to have some basis for
    his opinion that the person in the still photo was Mr. Behre, and whether Mr.
    Behre was better placed than the trial judge to make the identification.

[27]

Finally
     even though there was no objection to the admissibility of Officer Welks
    testimony at trial  the fact that no
voir dire
was held placed
    limitations on the extent to which Officer Welks identification evidence could
    be tested. As noted above, the Crown did not lead any evidence before the trial
    judge as to the timing or particulars of Officer Welks encounter with Mr.
    Behre, probably for the good reason that Crown counsel did not want to run the
    risk of a mistrial. Similarly, defence counsel would not be anxious to probe
    too deeply into Officer Welks meeting with Mr. Behre, or, indeed, his
    previous dealings and investigations because the evidence elicited might be
    prejudicial to Mr. Behres case. On a
voir dire
these matters could be
    probed without those concerns and Mr. Behre would at least have the sense that
    he had a fair chance to test the waters.

Disposition

[28]

I
    would therefore allow the appeal and direct that a new trial be held.

Released:
October 26, 2012 MR

R.A.
    Blair J.A.

I
    agree M. Rosenberg J.A.

I
    agree Tulloch J.A.





[1]
See e.g.
R. v. Brown
, 1999 CarswellOnt 4699 (Gen. Div.), per
    Trafford J.


