Dirie and Omar were both convicted of weapons possession offences. The sole issue at trial was identity. An apartment building equipped with a surveillance system captured the crime in progress. The trial judge found, beyond a reasonable doubt, that the two men in the footage were Dirie and Omar. She compared the men in court to the security footage, and gave some weight to the evidence of a police officer who had encountered Dirie on many occasions and who also recognized him in the footage. His posture and the way he spoke out of the side of his mouth were notable features. The trial judge also concluded the objects brandished by Dirie and Omar in the footage were loaded, restricted weapons.

Dirie and Omar appealed their convictions for a number of reasons: R v Dirie, 2016 ONCA 502.

In relation to the footage, both Dirie and Omar argued that the quality was too limited for identification purposes, and that it was an unreasonable finding of fact that the objects held by the individuals in the video were determined by the trial judge to be loaded restricted firearms. Dirie argued that the distinct features which the officer testified about should not have been considered by the trial judge in identifying him. Omar argued that the trial judge ignored the fact that no clothes matching the clothes in the footage were discovered after a search warrant was executed: @ paras 4, 5.

The Court of Appeal, in a brief decision, rejected all of Dirie and Omar’s arguments. The Court found it was clear from the trial judge’s reasons that she was “alive to the risks inherent in identification evidence”, and that she properly instructed herself in accordance with the principles articulated in R v Nikolovski, [1996] 3 SCR 1197. The trial judge determined the video was of sufficient clarity and quality for comparison purposes, she reviewed the footage multiple times, and, in comparing the images to Dirie and Omar, she was entitled to rely on the relevant police evidence at trial: @ para 7.

The trial judge also recognized the significance of the footage to the Crown’s case, and did so by expressly averting to the fact that the search executed did not assist the Crown: @ para 8.

Regarding the trial judge’s finding that the objects in possession of Dirie and Omar were loaded and restricted weapons, the Court of Appeal concluded there was “ample evidence” to support the trial judge’s finding, including “the aggressive brandishing of the objects and a third party’s reaction to seeing the objects, which was captured on video”: @ para 10.

Comment

This is another recent case from the Court of Appeal (see also R v Benson, 2015 ONCA 827) which highlights the increasing importance of surveillance footage as effective (and, as in this case, sometimes critical) evidence for the Crown to lead in cases where identity may be difficult to prove. The utility of such footage is obvious: not only can it sometimes assist the trier of fact in reaching a possible determination as to identity, but it may also assist in the possible identification of other crucial details, including the possession of weapons.

John Benson and Brian Timmons were neighbours. At first, they were friendly. It didn’t stay that way. Things deteriorated. One day, Timmons was working on fixing a borrowed truck. Benson set it ablaze. Timmons suffered minor burns, and property damage.

Unfortunately for Benson, he was caught on video. At trial, there was video of Benson approaching the truck with something in his hand, reaching into the driver’s side of the vehicle, igniting a fire, and quickly moving back. This evidence was critical. The sole issue was identity. Timmons watched the video, and testified that the man was Benson. Benson was convicted of four arson related charges.

On appeal, Benson raised three issues: 2015 ONCA 827. Two of those arguments concerned the surveillance footage. Benson argued that the trial judge:

Did not consider the effect of the evidence of the Crown’s expert forensic video analysis on the quality, as opposed to the admissibility, of the lay opinion recognition evidence.
Failed or refused to engage in any analysis concerning Timmons’ credibility, based on animus, his history of criminal misconduct, and that he lied to the trial judge about that misconduct.

The appeal was dismissed with reasons.

The Background

Timmons testified that he and Benson had known each other for at least six years. On the day of fire, Timmons heard percussion sounds and saw a cloud of smoke out his window. He saw the truck engulfed in flames. The fire department was called by a passerby. When they arrived, Timmons insisted he had set it on fire accidentally. He testified that he did not want the hassle of involving the authorities. A surveillance system had been installed by Timmons, which he had forgotten about. Timmons was reluctant to turn over the tapes. He believed he had caused the fire himself. Once he reviewed the video with police, Timmons immediately identified Benson as the fire starter [@ paras 8-12].

The Expert Video Evidence

With respect to the first issue, the Crown had adduced the video evidence at trial. The police expert who tendered the video evidence was called as a forensic video analyst. His evidence was relevant as to whether or not the video was in any way compromised or altered. When it is determined the video was not altered or changed and that it accurately depicts the scene, the video may indeed be a silent, trustworthy, unemotional, unbiased and accurate witness who has complete and instant recall of events [@ para 13-15, see R v Nikolovski, [1996] 3 SCR 1197 @ para 28].

In regard to video quality, the pixilation of the video was noted. It could not be further enhanced, which the trial judge took note of. However, whether the video was of sufficient quality to form the basis for identification was a question of fact for the trial judge, and of limited jurisdiction for review [@ para 16-18, see R v Abdi, 2011 ONCA 446 @ para 6]. In this case, the quality of the recording was relevant to the trial judge’s consideration of the content of the video, when determining what weight to give Timmons’ observations and identification of Benson. There was no need to give further consideration to the expert’s opinion, as those who are not acquainted with the accused are in no better position to identify persons in video evidence [see R v Leaney, [1989] 2 SCR 393]. The trial judge did not make a positive identification of Benson. He relied on his own observations and those of Timmons’ in making his decision on Benson’s guilt.

The Video Identification Issue

With respect to the second issue, the trial judge found Timmons to be a credible witness. While appellate courts retain power to reverse decisions where credibility assessments made at trial are not supported by the evidence, this is done sparingly. Interference with these rulings happens only in exceptional circumstances [@ paras 19-21; see R v W(R), [1992] 2 SCR 122 @ para 131, R v Burke, [1996] 1 SCR 474 @ para 5-7).

Specifically on the issue of Timmons identifying Benson, the trial judge noted a number of observations in the video in conjunction with Timmons’ evidence that he was 100% sure that the person in the video was indeed Benson:

The way he moved his arms;
The way he walked;
The way he limped as he was moving;
His Einstein hairstyle;
His face;
His body shape;
His thinning hair;
His age;
His build;
His enlarged stomach; and
The plaid shirt he always wore [@ para 23-24].

In cases of recognition evidence, such as this, the caution regarding the frailties of eyewitness identification still applies [@ para 25; see R v Olliffe, 2015 ONCA 242 @ para 39]. However, the level of familiarity between the accused and the witness may enhance the reliability of the identification evidence. The reliability of the evidence was enhanced by their relationship and familiarity with one another [@ para 25]. Further, the ability of a witness to point to a unique identifiable characteristic or idiosyncrasy is a concern better resolved when determining ultimate reliability, not admissibility [@ para 26; see R v Behre, 2012 ONCA 716 @ para 22].

Comment

This case again highlights the powerful nature of video evidence, especially when combined with the observations of witnesses. Although eyewitness identification evidence can be problematic, it remains important and forward-thinking law that witnesses who recognize persons captured by camera ought to be able to testify as to that knowledge – even in cases where the quality of the footage itself is less than ideal. In this case, Timmons clearly pointed out unique, distinctive, and recognizable features that signalled, to him, the person was Benson. These features were noted by the trial judge to be badges of reliability of identification. The trial judge’s own observations, when watching the video, were consistent with that of the witness [see paras 26-27]. Video evidence is an integral part of the truth-finding process. The impartiality it offers as a silent witness cannot be understated.