Criminal Law

Video evidence must be exact to convict: Hardlarski

By Paul Russell, AdvocateDaily.com Contributor

Police must exhaust all opportunities to gather evidence and not rely on a videotape of a suspect that might initially seem convincing, says Toronto criminal lawyer Ryan Handlarski, citing a recent case where he secured an acquittal for a youth accused of being part of an armed robbery.

“The Crown can’t expect the court to convict beyond a reasonable doubt if the investigating officers have not done their job,” says Handlarski, principal of RH Criminal Defence.

In the recent robbery case, a man arranged to meet a sex trade worker in a hotel room, but once there, he opened the door and allowed two other men in who robbed the woman at gunpoint, he tells AdvocateDaily.com.

“Sex workers are a very vulnerable population since they are doing something that is on the margins, so they often don’t report the crime,” Handlarski says.

Two weeks later, his client was arrested on another matter, and the officer investigating that crime noticed he was wearing the same type of white Nike hoodie and shoes as a suspect captured on hotel lobby camera footage in the sex worker robbery.

“At the end of the day, the only evidence tying my client to the first incident was that he was dressed in a similar fashion to the man seen in the hotel camera footage and that he matched the vague description given by the complainant of being a light-skinned black male,” Handlarski says.

He says a seminal 1996 Supreme Court ruling established that if the judge or jury can recognize an accused individual from a photograph or videotape from the crime scene, that is enough for a conviction.

“The Crown argued that not only did my client’s clothes match the image in the hotel lobby videotape, but also my client’s nose and chin were similar even though there was not a clear shot of the suspect’s face in the hotel footage, Handlarski says, pointing out that it was ludicrous to believe the Nike hoodie was proof of anything, considering there are an innumerable number of these hoodies worn by men across Ontario every day.

“You can’t merely look at something and say it is the same. You need evidence that it’s the same, Hardlarski says.

“The 1996 decision is premised on the idea of clarity — that you have a clear photo. If you don’t, the evidence is worthless.”

The Supreme Court judgment confirms the need for an identifiable facial photo.

“The degree of clarity and quality of the tape, and to a lesser extent the length of time during which the accused appears on the videotape, will all contribute to establishing the weight which a trier of fact may properly place upon the evidence,” the top court decision states. “The time of depiction may not be significant, for even if there are but a few frames which clearly show the perpetrator, that may be sufficient to identify the accused.”

Handlarski also questioned the woman’s identification of the suspect, explaining that judges have been highly critical of in-dock identifications — where a witness identifies the defendant in the courtroom or in the dock as being the perpetrator they saw at the scene of a crime.

“For decades, courts have been cautioning against the notion of in-dock identification, as there were so many wrongful convictions on that concept,” he says.

Handlarski says the Crown tried to establish this was not really in-dock identification, as the complainant first identified the man outside the courtroom.

“I argued it was the exact same thing,” he says. “She’s in a criminal court, she knows a person has been charged and is coming to court, and she sees a man matching her general description of the suspect, so of course she says, ‘There he is.’ She was psychologically primed to give that answer. But it is nonsense.”

Handlarski says another fact that helped sway the judge was police not showing the sex trade worker a photo lineup of other men matching her description of the suspect before charging his client.

“Keep in mind that reasonable doubt can be established either with evidence or by the absence of evidence,” he says.

During the trial, Handlarski asked the woman if she would have been willing to take part in a photo lineup procedure had she been asked and she confirmed she would have, as long as it could be reasonably close to her home. Later in the trial, the lead investigative officer testified that she did not make that offer, which the judge disbelieved, he says.

“At the end of the day, I argued the court must accept the evidence of the complainant that she was willing to do it, and the officer just didn’t bother,” Handlarski says.

In handing down the acquittal, he says the judge reminded the Crown about the unreliability of in-dock identifications.

“He also delivered a scathing rebuke to the officer, saying something similar to, “How can you not do a photo lineup in these circumstances, and then ask me to convict?” Handlarski says.

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