R. v. Hart (N.) et al., (2009) 614 A.R. 12 (PC)

• Judge: Semenuk, P.C.J.
• Court: Provincial Court of Alberta (Canada)
• Case Date: September 29, 2009
• Citations: (2009), 614 A.R. 12 (PC);2009 ABPC 277

R. v. Hart (N.) (2009), 614 A.R. 12 (PC)

MLB headnote and full text

Temp. Cite: [2009] A.R. TBEd. JL.112

Her Majesty the Queen v. Northwind Hart and Kendall Brian Hart

(090066077P1-01-001; 090066077P1-02-001; 2009 ABPC 277)

Indexed As: R. v. Hart (N.) et al.

Alberta Provincial Court

Semenuk, P.C.J.

September 29, 2009.

Summary:

During a voir dire held in a preliminary inquiry, the Crown called a witness, Kathy McCaw, a member of the Calgary Police Service and a Certified Forensic Video Technician, to give a lay opinion as to who she saw, and what she observed taking place, in a security video tape taken at the time of an alleged murder committed in the parking lot of the Coyotes Bar and Grill in Calgary. More specifically, she observed and described an altercation depicted in the video tape occurring near the front entrance, inside the bar, at closing time involving both of the accused (Northwind Hart and Kendall Hart) and the victim as they were exiting the bar. As well, she identified the accused, Kendall Hart, as being the person depicted in the video tape outside the bar, seen through the front window of the bar, running from right to left towards an altercation involving several Black and Native females. Finally, she described another altercation depicted in the video tape, occurring outside the bar, in the parking lot, seen through the front window of the bar, between various unknown individuals involving five strikes being delivered by an unknown individual or individuals to an unknown individual. Defence counsel objected to the admissibility of this evidence as constituting inadmissible lay opinion evidence.

The Alberta Provincial Court stated that "The sometimes obscure line drawn between fact and opinion or inferences of lay witnesses has been criticized by recent authority. The modern rule looks to 'helpfulness' to the trier of fact, rather than necessity. When admissibility is challenged, the Court should make it's decision based on relevance, and then in determining admissibility, assesses whether the probative value of such evidence is outweighed by it's prejudicial effect". The court ruled that the altercation observed and described by the witness involving both accused and the victim as they were exiting the bar was admissible. The identification of the accused, Kendall Hart, as being the person outside the bar, running towards the altercation involving several Black and Native females was not admissible. The altercation observed and described by the witness in the parking lot outside the bar was admissible.

Evidence - Topic 7112

Opinion evidence - Non-expert evidence - Admissibility - See paragraphs 1 to 25.

Evidence - Topic 7126

Opinion evidence - Nonexpert evidence - Opinion on issue to be decided - See paragraphs 20 to 21.

Counsel:

B. Kristensen and J. Sawa, for the Crown;

C. Stewart, Q.C., and D. Andrews, for the Defence.

This voir dire was heard before Semenuk, P.C.J., of the Alberta Provincial Court, who delivered the following ruling on September 29, 2009.