Debate over St. Mike assault video
Defence believe evidence not authenticated, argue it not be admitted
When a disturbing cellphone video showing the sexual assault of a student with a broomstick in a St. Michael’s College School locker room began circulating on social media two years ago, it sparked a high-profile police investigation, a slew of charges and a lengthy report on bullying and culture at the private school.
Four former students have already pleaded guilty for their roles in the November 2018 sexual assault, one of whom had admitted to filming it on his cellphone.
But in an unusual development in the remaining criminal trial of a former student — where the 22-second video has been a central piece of evidence for the Crown — the defence is arguing the video is inadmissible in part because two staff members testified the video shown in court doesn’t appear to be exactly the same one they previously saw.
“There was no canvassing (by the Crown) as to why do you believe it was different,” defence lawyer Geary Tomlinson argued. “It’s my respectful submission that the Crown has a significant authentication problem.”
Then-school principal Greg Reeves has testified he obtained the video from a concerned student on Nov. 12, 2018, and, the next day, watched the video with senior staff and two coaches to try to identify the teens involved. Reeves later forwarded that video to the police.
Crown prosecutor Sarah De Filippis argued that the video should be admissible because, though it isn’t known who took this particular video, there is compelling circumstantial evidence that it is a “substantially fair and accurate depiction” of what happened in the locker room on Nov. 7, 2018.
There is a “striking similarity” between the accounts of several eyewitnesses in the locker room who had not seen the video and what is shown on the video, she argued.
That authenticating evidence also comes from eyewitnesses who saw a student filming the sexual assault, a surveillance video showing the teens filing into the locker room before the sexual assault happened, and another witness who described the appearance of the victim shortly after the sexual assault in a way consistent with the video, she said.
The video only shows “a brief portion” of the sexual assault, she added.
The accused teen has been identified in the video by some Crown witnesses, including a vice-principal, as one of the boys holding down the victim. None of the teens who entered guilty pleas in relation to the sexual assault were called as witnesses.
Tomlinson, the accused teen’s lawyer, argued the origin of the video is unclear.
Though the cellphone of the teen who admitted to filming the sexual assault was seized and a court order granted to police to search the phone, that was never done, Tomlinson added.
No explanation for why the phone was not searched for the video has been given, he said.
“It’s my respectful submission they don’t want to open Pandora’s box, they don’t want to see what’s in there, they don’t want to see that there is something wrong with the video and the evidence cannot be authenticated by going through the cellphone and conducting a forensic analysis,” Tomlinson said.
Tomlinson also argued the video could have been manipulated before it got to Reeves, pointing to a decision in which a judge excluded a photograph of a police officer allegedly assaulting a woman at the 2010 G20 protests in Toronto that had been anonymously uploaded to a website. In that case, the judge excluded the photo because it could not be proven it had not been altered.
The Crown argued that decision was based on a misunderstanding of the legal test, and that there is no evidence the locker room video has been modified in any way.
Most bizarrely, three witnesses testified that the video shown in court looks different from the one they originally saw, Tomlinson argued.
“To be honest, that video is not, doesn’t look quite the same as the one I’ve seen before,” vice-principal Emile John told the court.
Assistant head football coach Kevin Shaughnessy testified: “From what I can recall, I don’t believe it’s the exact same.”
A teen also testified, during cross-examination, he thought the video is different from the one he saw.
De Filippis argued that the staff members testified they were horrified by the video and only watched it twice — making it difficult to recall if it was the same video more than two years later.
The accused teen has pleaded not guilty to two counts each of gang sexual assault, sexual assault with a weapon and assault with a weapon in relation to two different incidents involving different complainants, one in October and one in November.
None of the teens can be identified under the Youth Criminal Justice Act.
A decision on admissibility is expected on April 20.