Case Name:
R. v. T.J.
IN THE MATTER OF the Youth Criminal Justice Act S.C.
2002, c. 1
Between
Her Majesty the Queen, and
T.J.
[2006] O.J. No. 4036
Ontario Superior Court of Justice
Brampton, Ontario
C. Hill J.
May 30, 2006.
(9 paras.)
Counsel:
S. Latimer, Esq., Counsel for the Crown
R. Rusonik, for the Young Person
1 C. HILL J.:– Before leaving this case, I think it worthy of noting the Court’s conclusions and observations with respect to the videotaped statement of the accused, entered as Exhibit Nine in these proceedings. I believe the Crown introduced the exhibit because the defence was desirous of having Mr. T.J.’s statement to the officer, a person in authority, before the court. And Mr. Latimer, in the tradition of the Crown, assisted the defence in that regard by introducing it as part of his case. The exhibit was therefore admitted to assist the defence.
2 I, and my colleagues, for years have made observations critical of the type of videotape which I viewed between noon and one o’clock today in this case. The focus of the camera appears to be from the ceiling downward, which I have described in prior cases as a camera on Mars. I had a discussion with Steve Sheriff, of the Peel Crown’s office, in the context of a case about this very issue at least three years ago. He entirely agreed that it was an undesirable angle for the camera and had hoped to convince the Peel Regional Police to make amendments in their system. I have every reason to believe that the senior Crown counsel would have taken those efforts to heart, but apparently unsuccessfully at least to the time of this taped interview.
3 I have described the divisional videotape rooms in the past as being apparently broom or janitorial closets that had been renovated to make them into videotaped studios. I have no reason to part from that observation in this case. External noises are abundant, including sirens and sneezing, by way of example here.
4 The lighting in the room in this video was amongst the most peculiar I’ve seen — bright sunshine on two walls, the artificial lighting apparently turned out. This left the officer and the arrestee in virtual darkness. Mr. T.J. is an African/Canadian. What the viewer sees is a round, black blob in the middle of the video, which I take to be his head. It would be impossible for a viewer to actually determine by looking at that video, and the defendant before the court, that they’re one and the same person, because it’s impossible to distinguish any features of the arrestee sitting in the video. While KGB and the progeny of cases that came after it have lauded the videotaping of the confessions of accused because the trier of fact is able to see the demeanour of the accused, it is impossible in these Peel Regional Police videos to see any demeanour whatsoever. In this case not only because, again, we’re looking at the top of the head of the individual and not his face, but because we’re not able to see his face at all.
5 Conventionally, these videos have digital imprinting — a date and time. This video did as well. It also has white numbers and letters — in this case ‘2H’. I have no idea whether that refers to a video machine or a particular interview room, but for large segments of the video, the ‘2H’ was directly over the head and face of the arrestee, further obscuring any opportunity to see him as the speaker when he was speaking. As the interview continued, having started at 9:51 a.m., by the period of 10:40 a.m., and for the next 12 to 15 minutes, the sunlight had crept across the room sufficiently that sporadically some sunlight actually hit the face of the arrestee.
6 It is not apparent where, if at all, there is a microphone in the particular room in which the videotaping was done. It’s certainly not apparent that there is any mic on the table or affixed to the arrestee’s clothing. Any substantial number of the responses of the arrestee, despite the best attempts by the authorities, have remained inaudible. Sitting in the courtroom and exercising the trier of fact function, I was able to hear less than fifty percent of what the arrestee said in the video. And those who have obviously had the opportunity to play and replay the tape, have not been able to distinguish some of the words spoken. It’s up to the interviewer and any monitor of the taping system to ensure that the words spoken by the arrestee are audible. Indeed, at two or three places in this particular video interview, when the arrestee had the opportunity to provide, if he chose, particularly exculpatory information, the responses were completely inaudible.
7 Again, the philosophy of the KGB case that videotaping permits us to see and hear a person under the control of the government is all but lost when the videotaping is undertaken in this fashion. It’s certainly apparent that the officer didn’t leap up and smack the arrestee, but the video is really of very little use beyond that. This is not a technology issue where we’re asking a great deal of the authorities to present a videotape where we can actually hear and see both the officer and the interviewee, even when she or he is of a soft-speaking voice. This videotape would have been inadmissible as a prosecution exhibit.
8 Three decades ago, the late Inspector Jerry Stevenson of the Metropolitan Toronto Police Force undertook the second pilot project in the Province of Ontario dealing with the videotaping of suspects — the first having been in the Region of Halton, in which the Law Reform Commission of Canada had some participation. The videotape experiment by Inspector Stevenson in the late 1970s had a chair bolted to the floor for the defendant so that she or he couldn’t wander around the room, or turn the chair and get out of the view of the camera which had a direct line to the face of the defendant. There was a split screen so that one quarter of the screen dealt with a full front face view of the interviewee, while the remaining three quarters showed the interrogator or interrogators and the remainder of the room. The microphone was bolted to the centre of the interview table, could not be seized or broken off or used as a weapon, and all parties at all times in the pilot project were able to be heard. That was three decades ago. Toronto had apparently no difficulty with that pilot project and implementing it in its respective divisions.
9 It’s difficult to really describe what we’re looking at in the Peel Regional Police videos, but the foregoing is a summary of what Exhibit Nine looks like in this case, and is yet a further observation by a member of this Court of the entire inadequacy and apparent indifference of those who have undertaken the videotaping of suspects in custody in the Region of Peel.