R. v. Coban

2022 BCSC 263 R. v. Coban

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Coban, 2022 BCSC 263 Date: 20220217 Docket: X078463 Registry: New Westminster Regina v. Aydin Coban Before: The Honourable Madam Justice Devlin Reasons for Judgment re: Voir Dire #4 - Admissibility of Recognition Evidence Counsel for the Crown: L. Kenworthy H. Guinn Counsel for the Accused: J. Saulnier Place and Date of Voir Dire: New Westminster, B.C. February 14, 2022 Place and Date of Ruling given to Parties with Reasons to Follow: New Westminster, B.C. February 14, 2022 Place and Date of Judgment: New Westminster, B.C. February 17, 2022 Introduction [1] On this application, the Crown seeks a ruling on the admissibility of recognition evidence from Inspector Sjak Meerveld of the Dutch National Police with respect to the accused, Aydin Coban. Specifically, the Crown seeks to have Inspector Meerveld identify Mr. Coban in photographic evidence to be tendered at trial. [2] Counsel for Mr. Coban acknowledges that the Crown has met the threshold for admitting recognition evidence on this voir dire. While he has identified issues relating to the ultimate reliability of the proposed evidence, he agrees those are matters for the trial. [3] At the conclusion of the application on February 14, 2022, I advised the parties of my decision to permit the evidence of Inspector Meerveld with reasons to follow. These are those

reasons. Background Facts [4] The background facts are set out in the Crown's Notice of Application. A central issue at trial is identification. On January 13, 2014, Mr. Coban was arrested in the Netherlands and his residence was searched. During the search, Dutch investigators located passport sized photographs of a person the Crown alleges is Mr. Coban. In an earlier ruling, I determined that the Crown was permitted to tender evidence from four individuals who had contact with a person regarding rental apartments in Rotterdam in 2011. Their evidence was limited to the fact that they had received a passport identification with a photograph of the person they said they dealt with. [5] Inspector Meerveld interviewed Mr. Coban on a number occasions between the date of his arrest on January 14, 2014 and April 16, 2015. Inspector Meerveld also interviewed the four individuals who dealt with the person regarding the Rotterdam apartments. All four individuals provided Inspector Meerveld with a copy of the photograph they had received. Of the four photos he received, three were identical. Inspector Meerveld recognized the person in all four photographs as Mr. Coban. A copy of these photographs was filed as Exhibit #2 on the voir dire. The Crown seeks to tender Inspector Meerveld's recognition evidence at trial. The Voir Dire Evidence [6] Pursuant to s. 714.2 of the Criminal Code,

R.S.C., 1985, c. C-46, I permitted Inspector Meerveld to testify by video conferencing from the Netherlands. [7] Inspector Meerveld has been a member of the Dutch National police force since 2001. Since 2014, he has been working on the child exploitation team. During this time, he has been involved in an investigation called "Disclosure" involving Mr. Coban. Following Mr. Coban's arrest in January 2014, he interviewed Mr. Coban on 10 separate occasions, the last time being in January 2015. Inspector Meerveld prepared a chart which lists the date, time, and duration of each interview with Mr. Coban. The chart was marked as Exhibit #1 on the voir dire. [8] Before interviewing Mr. Coban, Inspector Meerveld had seen his arrest photo, which was included in Exhibit #1 at p.

5. He could not recall if he had seen other photographs of Mr. Coban before the first interview. The interviews were conducted in a special interview studio equipped with audio and video recording equipment. The room measured 5 by 5 metres, and in the middle of the room was a large desk. Inspector Meerveld and a colleague sat on one side of the desk and Mr. Coban on the other side. Inspector Meerveld made contemporaneous notes during the interview. According to the interview chart, the first interview on January 14, 2014 lasted approximately 5 hours and 11 minutes. Subsequent interviews ranged from a short 24 minute interview to one that was approximately 3 hours and 20 minutes in length. In total, Inspector Meerveld spent over 10 hours sitting directly across the table from Mr. Coban. Inspector Meerveld stated there was nothing particular about Mr. Coban's appearance. He had light-coloured skin and long, straight black hair with some greys. [9] As part of the investigation, in February and March of 2014, Inspector Meerveld also interviewed four individuals who dealt with a person regarding the Rotterdam apartments in 2011. The first of these interviews occurred on January 24, 2014, after he had already spent over nine hours interviewing Mr. Coban. Inspector Meerveld testified that following each interview, he received by email a copy of the photo identification each person had

received. Inspector Meerveld stated that he recognized the image in the photo as Mr. Coban. In particular, he said he recognized the eyes and the way the person in the photo held their mouth, which was the same as Mr. Coban. Inspector Meerveld was certain that the images in the photographs matched Mr. Coban in 2014. [10] In cross-examination, Inspector Meerveld explained that he became aware of the Rotterdam investigation in October 2013, when he was assigned to obtain a copy of the investigative file. He knew at the time that Mr. Coban had been interviewed by the Rotterdam police with respect to the apartment rental investigation. He could not recall if he saw a photograph of Mr. Coban from the Rotterdam file before he conducted his interviews. He agreed it was certainly possible that at some point he saw a photograph of Mr. Coban, because he would need to know who he was interviewing. However, Inspector Meerveld confirmed that the first time he saw the photos provided by the witnesses was when he received them. Inspector Meerveld emphasized that his ability to recognize Mr. Coban in the photographs was because of the hours he spent interviewing him. The Governing Legal Principles [11] The parties agree as to the legal principles which govern this application. They have both referred to the principles established in R. v. Field, 2018 BCCA 253 [Field] (leave to appeal ref'd:

2019 CanLII 413 (SCC)); R. v. Hudson, 2020 ONCA 507 [Hudson]; and R. v. Panghali, 2010 BCSC 1710 [Panghali]. [12] Non-expert opinion that a witness recognizes a person captured in a photograph or on video, based on a prior connection with that person, is admissible in certain circumstances. This principle emerged in R. v. Leaney, [1989] 2 S.C.R. 393, 1989 CanLII 28 (SCC) [Leaney] where Justice McLachlin (as she then was), for the majority, noted that such evidence is admissible where the witness had a prior acquaintance with the accused and is therefore in a better position than the trier of fact to conclude whether the individual in a photograph or video is the accused. Decisions since Leaney have further developed this general principle. [13] In Hudson at para. 29, the Court explained: In order for such recognition evidence to be relied upon by the trier of fact, two distinct inquires must first be undertaken. To begin, the trial judge must determine whether the evidence meets the threshold requirements for admissibility. If this test is met, the trier of fact must then assess the evidence to determine its ultimate reliability and the appropriate weight, if any, that can be properly attributed to it. [14] In Field, the Court reviewed a number of decisions addressing recognition evidence. It then offered the following summary of the guiding principles (at para. 34): In my

opinion, these judgments set out the appropriate principles for determining the admissibility of recognition evidence based on photographic or video evidence. When such evidence is tendered, the trial judge must conduct a voir dire to determine admissibility: Leaney. The purpose of the voir dire is to determine whether the recognition witnesses are in a better position than the trial judge as a result of their prior acquaintance with the accused to determine whether the person depicted in the photo or video is the accused. Provided the trial judge is satisfied that the image in the photo or video is capable of identification, issues as to the quality of the photographic or video evidence will go to the weight of the evidence. Once admitted, the trier of fact will need to consider the recognition evidence along with the evidence as a whole to determine whether the Crown has established identification beyond a reasonable doubt. [15] The Court in Hudson discussed the threshold admissibility and ultimate reliability components of the analysis in greater detail. The test for threshold admissibility of recognition evidence has been referred to as the "prior acquaintance/better position" test. The Court in Hudson distilled the test at para. 30, citing R. v. Berhe, 2012 ONCA 716: The trial judge must determine whether: 1) the witness is sufficiently familiar with the accused to have

"some basis" for their identification opinion; and 2) the witness, as a result of their prior acquaintance with the accused, must be in a better position than the trier of fact to identify the perpetrator, in the sense that they have "some advantage that can shed light on the evidence in question" [16] Procedurally, when recognition evidence is tendered, the trial judge will conduct a voir dire to determine threshold admissibility: Field at para. 34, Hudson at para.

29. The threshold for admitting recognition evidence is that of a helpful witness who is in a better position than the trier of fact to identify the accused: Field at para. 29, Hudson at para.

30. To determine the witness's degree of familiarity with the accused, the court considers (1) the length of the relationship between the witness and the accused, (2) the circumstances of their relationship, and (3) the recency of contact between them prior to the event where the witness recognized the accused: Field at para. 30, citing to R. v. Anderson et al, 2005 BCSC 1346 at para. 25. [17] The thrust of the inquiry is to determine the level of familiarity between the witness and the accused: Hudson at para.

31. The fundamental question is "whether the potential witness is sufficiently familiar with the accused such that the witness may be able to provide valuable identifying information about the accused that a trier of fact, with access to only the accused, the video, and photographic evidence during trial, will not be able to or unlikely to ascertain for him or herself": Hudson at para.

31. Before permitting a potential recognition evidence witness to testify, a trial judge should be satisfied on a balance of probabilities that the answer to this question is yes: Hudson at para. 31. [18] If the trial judge finds that the requirements for threshold admissibility have been met, the recognition witness will be permitted to testify. The credibility of the witness is a matter that goes to the weight of the recognition evidence, not its admissibility: R. v. McKinnon, 2013 BCSC 2097 at paras. 32-33. [19] With these legal principles in mind, I turn to my analysis. Analysis [20] As counsel for Mr. Coban acknowledged, Inspector Meerveld meets the "helpful witness" threshold, as contemplated in Field and Hudson. Considering that Inspector Meerveld spent over 10 hours sitting in close proximity to Mr. Coban over a period of weeks, I am satisfied he has the requisite degree of familiarity with the accused to satisfy the threshold required to admit his recognition evidence. [21] Further, Inspector Meerveld examined the photographs provided to him by the witnesses during the period of time he was interviewing Mr. Coban. While the witnesses received the photographs in 2011, it is important to consider that Inspector Meerveld received them in 2014. Inspector Meerveld's recognition evidence from 2014 is therefore not encumbered by changes to Mr. Coban's appearance that may have occurred due to the passage of time since 2014 (see Panghali, para. 16). Conclusion [22] I am satisfied that the Crown has established the threshold admissibility of Inspector Meerveld's recognition evidence of Mr. Coban. Therefore, Inspector Meerveld's recognition evidence is admissible. "Devlin J."