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MARKS

60 1. You are the trial judge, sitting with a jury in the case of R v Alpre. Mr Arnold Alpre is charged with first degree murder
in the death of Vince Violet. Mr Violet was killed early in the morning of September 27, 2018 by gunfire. The
crime occurred at an all- night diner at around 2:00am. Video footage of the incident shows that the shooter was
wearing jeans, a hoodie, and a Donald Trump mask. No gun or trace forensic evidence that could identify the
shooter was ever retrieved.

At the time of his death, Violet was having dinner with a friend, Riley Everett. Mr Everett was killed by shooting in
March 2019.

30 (a) (Suggested time: 48 minutes)

The Crown wishes to call evidence from Mr Delly Hanky. Mr Hanky is a clinical podiatrist who will testify that he
has developed a technique called forensic gait analysis by which it is possible to identify people from CCTV even
if their face is obscured. The defence objects to the admissibility of Mr Hanky’s evidence.

On voir dire, you have heard the following testimony from Mr Hanky:

‘I hold a Masters degree in human kinetics from the University of Buckingham in England. My Masters was
conferred in 2009. In that project, I developed a method for identifying individuals based on their movement
patterns, particularly their gait. Gait refers to the way in which a person walks or runs.

My Masters work was supervised by Dr Anson Vriend, who pioneered a new method of video-based gait analysis
for clinical podiatry. Dr Vriend’s work has been published in scientific peer-reviewed journals and widely adopted
in clinical podiatric practice in Europe and North America. In my Masters project, I applied the basic premises of
Dr Vriend’s techniques to the new field of forensic identification. In forensic identification applications, the
analyst is invited to compare video footage of a known person walking or running against footage of an unknown
suspect or perpetrator. For example, in this case, I compared the footage taken from the all-night diner where
the shooting occurred against footage of Mr Alpre which was covertly obtained in the police detachment after
his arrest.

In the footage taken at the crime scene, the perpetrator can be seen walking into the diner, shooting Mr Violet,
and then running out the door. The total period of time in
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which the perpetrator is shown is approximately 9 seconds, which includes approximately 10 metres of walking
and 10 metres of running. At some moments, the perpetrator’s gait is obscured by the booths at which
customers sit.

In the footage taken at the police detachment, Mr Alpre is depicted walking down a corridor while handcuffed.
This footage is taken from behind Mr Alpre, and therefore is the same angle as that shown in the crime scene
footage when the perpetrator runs away. I would estimate that Mr Alpre walks approximately 20 metres in the
police footage.

Using my adaptation of the techniques originally developed by Dr Vriend, I am able to identify common features
of gait as between the footage of the perpetrator and that of Mr Alpre. In both instances, the person depicted
has over-pronation, a condition which affects approximately 20% of the population. The person depicted in both
sets of footage also has an outward turning left foot, while the right foot points forward naturally. This is a much
rarer movement pattern, which I would estimate affects no more than 5% of the population. In addition, the
height and build of the person depicted in both sets of footage appears to be very similar.’

On cross-examination, Mr Hanky agreed with defence counsel that he had not published his Masters’ work or
otherwise had this adaptation of clinical techniques peer-reviewed. Mr Hanky has had no training in forensic
science or the dangers of wrongful conviction, but testified that ‘I am very careful to ensure that I am very
certain about what I have observed before I will provide an opinion.’ Mr Hanky also agreed that in clinical
podiatry, it is possible to manipulate video angles, ensure clarity of footage, and direct movement to capture
features of interest, whereas when one is working with footage that has been covertly captured, one must
necessarily work with footage of lower quality. However, he testified that the care with which he makes his
observations, including spending many hours poring over these few seconds of footage, enables him to
compensate for these constraints. Mr Hanky testified that he does not have an error rate for his technique, and
has not studied whether different analysts consistently observe the same features in the same footage.

Defence counsel has submitted to you that Mr Hanky has not demonstrated that he possesses any expertise
beyond that which could be obtained by a careful juror who watched the footage several times, and that he has
not demonstrated that his evidence is sufficiently reliable to counter the dangers of wrongful conviction that
have been associated with expert evidence. Defence counsel submits that Mr Hanky’s evidence is completely
inadmissible. Crown counsel submits that Mr Hanky has demonstrated that his techniques are systematic and
grounded in peer-reviewed techniques. She submits that it is possible to minimise any dangers of deferral to
expert witnesses through careful judicial instruction.

Write your judgment regarding the admissibility of Mr Hanky’s evidence. Ensure that you identify and apply
relevant case law and explain the reasons for your decision.

In deciding the admissibility of Mr. Hanky's evidence, I must assess whether his forensic gait analysis technique meets the
threshold for expert evidence and whether it is sufficiently reliable to be presented to the jury. The criteria for admissibility of
expert evidence in Canadian law are established in the case of R v. Mohan, and I will apply those criteria to the present case.

The criteria set out in R v. Mohan are as follows:

1. Relevance: The evidence must be relevant to a material issue in the case.

2. Necessity: The evidence must be necessary to assist the trier of fact in understanding the evidence or determining a
fact in issue.
3. Qualification: The witness must be qualified as an expert by virtue of their special knowledge, skill, experience,
training, or education.
4. Absence of Bias: The expert's opinion must not be influenced by any improper motive or bias.
5. Properly Instructed: The expert must provide evidence within the confines of their expertise and not usurp the role
of the trier of fact.
6. Sufficiently Reliable: The evidence must be based on a recognized scientific or other specialized methodology and
must meet the threshold of reliability.
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Examining the testimony of Mr. Hanky, it is clear that he meets the qualification criteria, as he holds a Masters degree in
human kinetics and has applied techniques from clinical podiatry to develop forensic gait analysis. However, concerns arise
with respect to the necessity and reliability of his evidence.

Necessity: The Crown must establish that Mr. Hanky's evidence is necessary to assist the jury in understanding the evidence
or determining a fact in issue. Given that the video footage captures the perpetrator's walk for a limited time and is of lower
quality, it may be argued that a jury, with careful observation and guidance, could potentially make a comparison without the
need for Mr. Hanky's expert testimony. The necessity requirement has not been firmly established.

Reliability: While Mr. Hanky's methodology is based on an adaptation of techniques used in clinical podiatry and is supported
by peer-reviewed work by his supervisor, Dr. Anson Vriend, it is concerning that he has not published his own Masters' work
or subjected his forensic gait analysis to peer review. Additionally, his lack of training in forensic science and failure to
demonstrate an error rate or inter-analyst consistency raise doubts about the reliability of his technique.

Considering the potential dangers of wrongful conviction associated with expert evidence, it is essential to ensure a high level
of reliability. Mr. Hanky's evidence may be subject to manipulation of angles, lower-quality footage, and potential bias. These
factors cast doubt on the reliability of his conclusions.

In conclusion, while Mr. Hanky's expertise may satisfy the qualification criteria, the necessity and reliability of his evidence
have not been sufficiently demonstrated. As a result, I find that Mr. Hanky's evidence is inadmissible. The jury shall not hear
his testimony during the trial. It will be the jury's responsibility to assess the video footage and other evidence presented,
with appropriate instructions from the court on how to evaluate the footage without expert assistance.

MARKS

30 (b) (Suggested time: 48 minutes)

The Crown has made an application to introduce hearsay evidence via testimony from Constable Crowe of
the Vancouver Police Department. Constable Crowe was one of the first police responders to the 911 call
made by staff at the diner when the shooting happened. He arrived within 3 minutes of the shooting. When
Constable Crowe arrived at the diner, Violet’s friend and dinner companion Mr Riley Everett was extremely
angry. Constable Crowe has testified that Mr Everett ‘lost control’ and was ‘trashing the diner’, requiring
Constable Crowe to arrest and handcuff Mr Everett to subdue him. After being handcuffed and led to a
police cruiser, Mr Everett was ‘quite agitated and very upset’, but more in control. Constable Crowe testified
that Mr Everett was not obviously under the influence of drugs or alcohol, but was reacting strongly to
having witnessed his friend’s death by shooting.

Within ten minutes of the shooting, while sitting in the police cruiser, Mr Everett told Constable Crowe that
after the shooter had run out of the diner, that person got into the passenger side of a ‘brown/grey Cadillac
or Lincoln’. Constable Crowe made a note of this description in his police notebook. Mr Everett also supplied
other information about the shooter, including that the shooter was wearing a Donald Trump mask, grey
hoodie and black jeans. This information was subsequently corroborated by the video footage obtained
from a security camera inside the diner.

Seven hours later, at the police detachment, Mr Everett described the getaway car to Mr Everett as a
‘decent, not cheap’, ‘late model Cadillac or Lincoln’ with four doors and blue headlights. This statement was
video-recorded, but Mr Everett was not given any police warnings as he was not then under suspicion in
relation to any crime.

Police undertook an extensive search for registered late model Lincolns and Cadillacs with four doors in
brown/grey. This search revealed one such car, a grey Lincoln, registered to Budget Car Rentals at
Vancouver Airport. Budget’s records show that this vehicle was rented to Mr Alpre from September 6 –
October 2, 2018. Subsequent inspection of the vehicle by crime scene investigators failed to find any trace of
blood or other forensic evidence. The vehicle was equipped with high intensity discharge headlights that
produced bright white light.

One year after Mr Violet’s death, Mr Everett was shot and killed. Other evidence suggests that Mr Violet and
Mr Everett were mutually involved in drug trafficking, and that they were both likely killed in the course of a
gang rivalry. In the statement Mr Everett gave at the police detachment seven hours after Mr Violet had
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died, he denied that he or Violet had any involvement in drugs or organized crime.

Write your ruling on the admissibility of the two statements made by Everett after the shooting. (30
marks)

In ruling on the admissibility of the two statements made by Mr. Everett after the shooting, I will apply the principles of
hearsay evidence and the exceptions to hearsay as established in Canadian law.

Hearsay is generally defined as an out-of-court statement made by someone other than the witness, which is being offered
in court to prove the truth of the matter asserted in the statement. Hearsay evidence is generally considered unreliable as
the declarant is not present in court for cross-examination, thus potentially denying the accused the right to confront their
accuser. However, there are exceptions to the hearsay rule that may allow such evidence to be admitted under specific
circumstances.

The two statements made by Mr. Everett after the shooting are as follows:

1. Statement made to Constable Crowe while sitting in the police cruiser, describing the shooter's getaway car as a
'brown/grey Cadillac or Lincoln'.
2. Statement made at the police detachment seven hours after the shooting, describing the getaway car as a 'decent,
not cheap', 'late model Cadillac or Lincoln' with four doors and blue headlights.

Now, I will assess the admissibility of each statement based on the exceptions to hearsay:

1. Present Sense Impression Exception: The first statement made by Mr. Everett to Constable Crowe while sitting in
the police cruiser shortly after the shooting may fall under the present sense impression exception. This exception
allows for the admission of a statement describing or explaining an event or condition made while the declarant
was perceiving the event or condition or immediately thereafter. Mr. Everett's statement about the shooter's
getaway car was made shortly after the incident, while he was still at the scene and in an agitated state. As it was
made contemporaneously with his observation, it may be considered a present sense impression and could be
admitted as an exception to the hearsay rule.
2. Dying Declaration Exception: The second statement made by Mr. Everett at the police detachment seven hours
after the shooting could potentially fall under the dying declaration exception. This exception allows for the
admission of a statement made by a declarant who believed their death was imminent and about the cause or
circumstances leading to their impending death. While Mr. Everett was not mortally wounded at the time he made
the statement, if other evidence suggests that he was subsequently killed in the course of gang rivalry, it could be
argued that he may have believed his life was at risk when he made the statement. If the court finds that he made
the statement with the belief of impending death, this exception may apply, and the statement could be admitted
as evidence.

In conclusion, the first statement made by Mr. Everett to Constable Crowe while sitting in the police cruiser may be
admissible under the present sense impression exception. The second statement made at the police detachment seven
hours after the shooting may be admissible as a dying declaration, depending on the court's assessment of the evidence
indicating Mr. Everett's subsequent death in the course of gang rivalry. However, the admissibility of both statements
ultimately depends on the court's evaluation of the specific circumstances and compliance with the exceptions to the
hearsay rule.