Summary

Keywords

Criminal law - Evidence - Identification - Voir dire - Whether the Court of Appeal erred in law in finding that the learned trial judge was not compelled to hold a voir dire before admitting the identification evidence of the undercover officer - Whether the Court of Appeal erred in law when finding that the learned trial judge did not commit an error of law by declining to examine the videotape evidence for the purpose of determining whether the accused was the same person who sold drugs to the undercover officer - Whether the Court of Appeal erred in law when finding no fault with the use by two police officers of a video taken by the undercover officer and a still photograph made from the video in identifying him.

Summary

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At trial, the appellant, Mr. Murtaza, was convicted of trafficking and possession of proceeds of crime after selling cocaine to an undercover police officer. Identification was the sole issue at trial. The trial judge accepted the evidence of a surveillance officer and an undercover officer who testified that Mr. Murtaza was the person who sold him cocaine three years earlier. The undercover officer’s present recollection was the product of his review of a short video of the drug-sale transaction and a frame of the video displaying the drug dealer’s face in the course of answering questions posed earlier in his direct examination.

On appeal, Mr. Murtaza raised concerns about the use of the video and photograph in identifying him and argued that a voir dire was required. Wakeling J.A. dismissed the appeal. In his view, it was open to the trial judge to decide not to hold a voir dire and to instead accept the Crown’s argument that the undercover officer used the video and the photograph to refresh his memory and identify Mr. Murtaza relying on his revived memory. The trial judge demonstrated no error in principle and was entitled to attach the weight she thought appropriate to the undercover officer’s eyewitness identification evidence. Wakeling J.A. held that there was no reason to believe the trial judge was not fully aware of the dangers associated with eyewitness identification such as that made by the undercover officer. Rowbotham J.A. concurred in the result. In dissent, Veldhuis J.A. would have allowed the appeal and remitted the matter for a new trial. In her view, a voir dire was required to canvas how the undercover officer and surveillance officer were using the video and photograph to assist in their identification. She also held that it was an error for the trial judge not to review the photograph and video evidence herself.

Lower Court Rulings