



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Pathan, 2020 ONCA 108

DATE: 20200211

DOCKET: C64187

Rouleau, Benotto and Harvison Young JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Wariskhan Pathan

Appellant

Breana Vandebeek, Mark Halfyard, for the appellant

Lisa Joyal, for the respondent

Heard and released orally: February 6, 2020

On appeal from the conviction entered on May 29, 2014 and
    the sentence imposed on July 29, 2014 by Justice W. Brian Trafford of the Superior
    Court of Justice.

REASONS FOR
    DECISION

[1]

The deceased was shot and killed in the lobby of an apartment building.
    Security cameras captured the following events. The appellant and the
    co-accused Patel entered the outer lobby of the main entrance of the building.
    Patel pulled on a locked door to the entrance of the inner lobby, but it did
    not open.

[2]

The deceased walked through the inner lobby towards the locked door, let
    Patel in but closed it before the appellant could enter. Patel and the deceased
    had an altercation and struggled for what appeared to be Patels gun. The
    appellant, still in the outer lobby took out a firearm. Patel opened the glass
    door to the outer lobby and the appellant shot through the glass door. The
    deceased fell to the ground and the appellant and Patel fled through the front
    door.

[3]

The appellant was convicted of second-degree murder and Patel was
    acquitted. The appellant submits that the trial judge erred by allowing, at the
    request of Patel, expert evidence about what happened on the security video.
    Patel sought to rely on this evidence to support his position that he did not
    fire a weapon. The appellant took the position that the expert evidence
    undermined his claim of self-defence, lack of
mens rea
and his claim
    that Patel had an operational firearm.

[4]

The parties agreed that there were defects in the video that required
    expert testimony, in particular, motion blur, pixilation and data-compression.
    However, the appellant submits that the trial judge allowed the testimony to go
    beyond permissible opinion evidence because the expert testified in a narrative
    fashion about what he saw in the video. The expert opined as to the direction
    of the apparent gun that Patel was holding, who was firing and the number of
    shots that were fired. It is submitted that this testimony usurped the function
    of the jury. We do not agree.

[5]

The trial judge had ruled that the expert could testify as to the area
    within his expertise. The trial judge recognized that it would be difficult for
    the expert to limit his testimony to the defects in the video without providing
    some narration that would have been within the jurys ability to assess.

[6]

In our view, the trial judge correctly exercised his gatekeeper function
    at the time of the ruling and throughout the evidence. We do not agree that the
    expert testimony went beyond the trial judges ruling. In any event if there
    had been extra-narrative, the trial judge gave three separate cautions to the
    jury. Prior to the evidence being given, the trial judge instructed the jury
    that it was up to the jury to interpret the video and that the jury should
    assess the experts credibility and reliability as it would assess the evidence
    of any other witness.

[7]

During the cross-examination of the expert, the trial judge gave another
    caution and told the jury that the expert was not here to tell us everything
    that he sees on the tape, but rather, the expert was there to help the jury
    interpret certain aspects of the video that are hidden to the lay mind.

[8]

Finally, the trial judge gave specific instructions in his final charge
    to the jury. He reminded the jury that it was the jurys responsibility to
    interpret the video and the jury was to interpret it themselves. In particular,
    he said: We do not need [the experts] help in the interpretation of much of
    the video, do not be affected by those parts of the opinion, interpret them on
    your own as you see fit in the context of the evidence as a whole.

[9]

In our view, the trial judges three separate instructions to the jury
    addressed the issues raised by the appellant.

[10]

With respect to the prejudice alleged, we note that the trial judge was
    alive to the potential prejudicial impact of the evidence. We defer to the
    exercise of his discretion in the weighing of the probative value and
    prejudicial impact of the evidence.

[11]

Given the careful ruling of the trial judge and the cautions in his
    charge to the jury, we do not accept the appellants position that the jury
    would have been overwhelmed by the expert testimony.

[12]

For these reasons the appeal is dismissed.

Paul Rouleau J.A.

M.L. Benotto J.A.

A. Harvison Young
    J.A.


