R. v. Pinnock
Her Majesty the Queen, and
Reuben Pinnock and Christopher Rowley
 O.J. No. 3692
Ontario Court of Justice
Central East Region
Heard: August 5, 2004.
Judgment: August 13, 2004.
Criminal law — Evidence and witnesses — Admissibility of Evidence — Identification — From video tape or audio tape.
Application by the Crown to have admitted as evidence at the preliminary inquiry, the videotape of a photo line-up and the statements contained therein of the complainant. The Crown sought to have the videotape admitted because during his testimony, the complaint had retracted his identification of the accused, Pinnock. The complainant admitted that he had lied to the police during the course of this case. Pinnock argued that notice of the application the night before it was brought was insufficient and therefore should be dismissed.
HELD: Application dismissed. The videotape was not admissible. It was not possible to find the complainant credible. Therefore the information being offered by the Crown on this application was neither credible nor trustworthy and thus it could not be admitted at evidence at the preliminary hearing. Pinnock
would have been aware of the results of the line-up and therefore would not have been prejudiced by the late notice. However, even if some prejudice existed, it could be remedied by allowing Pinnock’s counsel to further cross-examine the complainant.
Statutes, Regulations and Rules Cited:
Criminal Code, s. 540(7), 540(8).
C. Jenkins, for the Crown.
J. Penman, for the accused, Reuben Pinnock.
C. Angelini, for the accused, Christopher Rowley.
REASONS FOR JUDGMENT
1 CHISVIN J.:– In the course of this preliminary hearing the Crown has brought an application pursuant to section 540(7) of the Criminal Code to have admitted as evidence the videotape of a photo line up and the statements contained therein of the complainant M.T. The videotape apparently relates to the identification of the accused Pinnock only. Both Crown Counsel and Counsel for Pinnock made submissions. While Counsel for Rowley was given the opportunity to make submission, Counsel declined as the matter did not directly impact on Rowley. At the time of the application I ruled that the videotape would not be admitted. I indicated that I would provide more extensive written reasons.
2 The alleged offences relate to a robbery that has been referred to as a ‘drug rip off’. In the course of his evidence at the preliminary hearing M.T. was asked about the identification of a person he had picked out in a photo line up. This procedure had been video taped by the police. When questioned by the Crown with respect to this issue M.T. seemed to retract from his original position that he took on the video. M.T. testified that notwithstanding what he might have said when he originally did the photo line up, he had picked that picture only because it showed a person who had a similar nose to that of the perpetrator and a similar complexion. It was however, not a picture of the perpetrator.
3 It is as a result of this testimony that the Crown brought the application to have admitted as evidence the videotape of M.T. doing the photo line up and to have admitted the statements he made during the course of that identification.
4 There are 2 issues to be dealt with here, whether sufficient notice was given to counsel for Pinnock as required by s. 540(7), and if so is the information credible or trustworthy. It is only where both of these criteria have been met that information that would otherwise not be admissible can be admitted pursuant to s. 540(7).
5 Counsel for the Crown argued that in the circumstances in which this matter arouse notice was as sufficient as could be expected. Notice here was provided to Counsel the night before this application was argued, after M.T. had testified in chief and after he had been cross-examined. Crown Counsel submitted in the alternative that even if notice was not reasonable as requires I should none the less exercise my discretion as set out in s. 540(8) and waive the requirement of reasonable notice. The Crown suggest that if any prejudice that maybe occasioned as a result of the lack of notice could be rectified by allowing Counsel for Mr. Pinnock to cross-examine M.T. again and that the Crown would act to have M.T. available for further cross examination.
6 Counsel for Mr. Pinnock argued that the notice given was not reasonable and that without reasonable notice Mr. Pinnock had been prejudiced. In part counsel submits that some of the prejudice can be found in the fact that she might have conducted her cross examination of M.T. differently had she been aware that the Crown was intending to introduce, or try and introduce the video tape.
7 There is no question that in the traditional sense notice here was not reasonable, have been given only the night before the application. If this were the only basis upon which the Court could act, then the matter would be over. However, there is an overriding discretion in the Court to hear the application notwithstanding notice was not reasonable.
8 The question then is, should I exercise my discretion and allow the application to be argued? It is obvious that M.T. did not testify as was expected. In fact it appears M.T. was making every effort to back as far away as possible from his original identification. This turn of events was not one that could reasonably be anticipated at this stage of the proceeding by the Crown. Thus, Crown Counsel acted at the first reasonable opportunity here in notifying Counsel for Mr. Pinnock of her intent. A trial or a preliminary hearing is like a constantly changing organism. It is not always possible to anticipate how it will change. The unexpected does happen.
9 While Counsel for Mr. Pinnock argued that there was potential prejudice to the accused, the reality is in this matter that the evidence, as it turned out was in fact more advantageous to Mr. Pinnock. Clearly Counsel was aware of the result of the line up, as this would have been part of the disclosure provided. Thus, even if some prejudice exists, which I am not convinced of given the stage of proceedings we are at, it could be remedied by allowing Counsel for Mr. Pinnock to further cross examine M.T.
Credible or Trustworthy
10 The Canadian Oxford Dictionary defines credible as being a “person or statement believable or worthy of belief (Oxford University Press Canada c. 2001). Should M.T. be believed? Although not generally an issue at a preliminary hearing, given the manner in which this matter has arisen it is necessary to assess M.T.’s credibility. In doing so I have considered the following evidence. M.T. has a criminal record that includes offences of dishonesty. He has, in giving his evidence tried to repudiate prior statements he made to people in authority. Detective M. Young testified prior to this application that he had concerns from the outset with respect to M.T.’s candour. There was evidence presented that M.T. was trying to hold the police at ransom. He suggested that he might only give information to the police if they helped with the issue he was having with the Children’s Aid Society. Clearly M.T. was an individual prepared to manipulate or try and manipulate the process to his advantage.
11 While all of the above causes me concern with respect to M.T.’s credibility, the single most important factor is that M.T. conceded that he had lied under oath with respect to this matter. Apparently on an earlier occasion he provided the police with a statement made under oath. He concedes that he lied in that statement. Thus, given that M.T. is an admitted perjurer and that the perjury relates to the matter before this Court, it is not possible to find M.T. credible. Thus, I cannot find that the information sought to be adduced by the Crown is credible.
12 Is the information being offered trustworthy? The Canadian Oxford Dictionary defines trustworthy as “deserving trust” (supra, pg. 1558) Trust is defined, in part, as “… reliance on the truth of a statement, etc. without examination.” (supra, pg. 1558) Given my comments above, it would not be possible to rely on the statement of M.T. without examination. When that examination is done, anything said by M.T. would have to be scrutinized very closely.
13 Given these comments then, it is not possible to conclude that the information proposed by the Crown is on its face trustworthy.
14 Thus in all of the circumstances I cannot conclude that the information being offered by the Crown on this application is either credible or trustworthy and thus it will not be admitted at evidence at the preliminary hearing.
15 Finally I note that in the course of Crown Counsel submissions it was suggested that to assist in interpreting the words credible and trustworthy as set out in s. 540(7) I should consider the K.G.B. line of authority dealing with necessity and reliability. Notwithstanding this able argument, it is clear to the Court that section 5540(7) is a very different test then set out in the K.G.B. line of authority and that this was the intent of Parliament. I have to assume that if the test were to be that of the K.G.B. cases then Parliament would have used that wording. Rather, the test as required by s. 540(7) is analogous with the test foe evidence at a judicial Interim Release hearing. This interpretation is clearly in line with the amendments to the Criminal code that have been implemented with respect to the preliminary hearing.
16 Thus, for the reasons set out, while I find that notice was sufficient in the circumstances of this particular case, the information, which the Crown wishes to be introduced, is neither credible nor trustworthy and will not be admitted.