[REDACTED]

Ontario Superior Court of Justice

Between

Her Majesty the Queen

Applicant

and

[REDACTED] [REDACTED] and [REDACTED]

[REDACTED], for the Applicant, Her Majesty the Queen

[REDACTED] for the Respondent, [REDACTED]

[REDACTED] for the Respondent, [REDACTED]

Released: [REDACTED]

Judge: [REDACTED]

RULING RE USE OF VIDEOTAPE OF PHOTOGRAPHIC LINE-UP

1. The Issue

[1] The Applicant, Her Majesty the Queen seeks to introduce a videotape of the photo lineup in which the Complainant identified Messr[REDACTED] and [REDACTED] as the perpetrators of the offences with which they have been charged. The Respondents, [REDACTED] [REDACTED] and [REDACTED] object to the introduction of this evidence.

[2] The Crown relies on the principles set out in R. v. Tat, 35 O.R. (3d) 641 (Ont. C.A.) at para. 35 wherein [REDACTED] held that prior statements identifying the accused are admissible where the identifying witness identifies the accused at trial and evidence of descriptions given before an in-court identification and particulars of an identification made before trial are< admissible as original evidence going to the issue of identification.

[3] In R. v. Tat [REDACTED] held that, The trier of fact will consider the entirety of the identification process as revealed by the evidence, before deciding what weight should be given to the identification made by the identifying witness. Evidence of the circumstances surrounding any prior identifications and the details of prior descriptions given will be central to that assessment.

...

The trier of fact is told to look to the entirety of the identification process before deciding what weight should be given to the identifying witness' testimony. In this respect, evidence that the witness previously gave a description which matched the accused or previously selected the accused in a line-up serves no different evidentiary purpose than would evidence showing that the identifying witness had an ideal vantage point from which to observe the perpetrator of the offence. Both are factors which will assist in weighing the witness' in-court testimony.

[4] The Respondents suggest that viva voce evidence regarding the photo line-up process is permissible but that the videotape of the photo line-up process is not. Counsel suggests there is a serious risk that the videotape will be seen by the triers of fact as adoption or repetition of the conclusions reached by the Complainant during the videotaped process of identification. Finally they suggest that the videotape contains reference to the Complainant's holiday plans and extraneous material that they say demonstrates that the Complainant had a friendly relationship with the police.

[5] The Respondents have been unable to locate any support for their proposition that videotaped evidence of the photo-line-up process should be excluded and the Crown must rely only on the Complainant's viva voce testimony regarding the photo line-up process.

[6] Counsel for the Crown has agreed to show the tape of the photo line-up process but to exclude extraneous material that precedes the photo line-up process itself.

[7] Given the broad principles articulated by [REDACTED] and the reasons therefore, I am of the view that the videotape of the photo line-up process should be admitted as evidence in this proceeding.

[8] It is the best evidence available of the entirety of the identification process and the Respondents have not satisfied me that the probative value is outweighed by any prejudicial effect on the accused. It is important to consider the entirety of the identification process as revealed by the videotape, in order for the triers of fact to decide what weight should be given to the identification made by the Complainant. Evidence of the circumstances and details surrounding these prior identifications will be central to that assessment.

[9] For these reasons the Application to rely on the videotape photo line-up is allowed on the understanding that the extraneous material preceding the photo line-up itself will not be part of the videotape presented to the triers of fact.

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