At the conclusion of what the Justice Boswell described as “a long and difficult murder trial”, the court was called upon to determine what if any “deliberation aids” would accompany the jury once they retired to deliberate.
Changes in technology used by criminals and in the courtroom have fundamentally changed the nature of evidence and the manner in which it is presented to judges and juries. Moreover as juries are being called upon to make findings of fact based on an “ever-increasing mass and complexity” of evidence, courts and counsel must decide what and which measures of assistance will be provided to juries to assist them in fulfilling their duties.
In R v Pan, 2014 ONSC 6055 (SC) Boswell J was called upon to decide whether a PowerPoint presentation which would be presented to the jury during the Crown’s closing argument could be provided to the jurors upon commencing their deliberations.
The PowerPoint in issue was prepared by an analyst with the Ontario Provincial Police (OPP) and was being offered as an aid to understanding a large body of cell phone evidence. Defence counsel representing each of the four co-accused, took no issue with the presentation of the slides during the closing argument of the crown but rather objected to the jury being provided with a copy upon commencing their deliberations.
The four co-accused in this case were charged with the home invasion murder and attempted murder of Ms Pan’s parents. Ms Pan was home at the time of the attack and aroused the suspicions of police when she confided in them that she had arranged for the attack and that she was the intended target. Her parents, she claimed were not supposed to have been harmed. Through their investigation police obtained a large volume of cell phone records of the co-accused
Justice Bowell noted that:
[t]here is no doubt that the accused in this case were cell phone enthusiasts. One might fairly describe them as prolific callers and texters. Their "digital embraces" are at the core of the Crown's case. Their contacts with one another and with third parties left an almost incomprehensibly thick trail of data and metadata. @para 83
The Crown tendered the cell phone evidence for several purposes including:
- Identifying the users of specific cell phone accounts
- Demonstrating the connections between the accused persons
- Demonstrating the connections between the accused persons and other persons of interest
- Demonstrating the timing of contacts involving the accused persons
- Demonstrating the content, where available, of specific text messages involving the accused persons, and
- Demonstrating the cell tower sites used during communication as circumstantial evidence of the locations of various persons. @para 15.
Before turning the to the specific cell phone records in this case Boswell J took a moment to very helpfully explain what exactly is meant by cell phone evidence.
Cell phone networks are like large computer networks. They are made up of a web of connected cell sites. Cell phones — sometimes referred to as "handheld devices" — are basically sophisticated two-way radios. They communicate with a network through radiofrequency signals. Signals are sent and received through particular cell sites — usually the cell site closest to where the phone is located. When a phone communicates through a particular cell site, it is said to "register" with that site.
Telecommunications companies, like Bell, Rogers and Telus, keep detailed records of the phone usage of their subscribers. Detailed records are essential to them for billing purposes. Those "call detail records" include, without limitation: the phone number of the subscriber; personal information about the subscriber, such as the name and address under which the account was opened; the serial number of the phone; the date, time and duration of phone calls, text messages, and data usage (including web browsing); other phone numbers communicated with; and identifying data about the cell tower sites the phone has registered to. @paras 18-19
In Pan some 700 000 communications were obtained as a result of the various warrants and production orders obtained by police. Those “raw” records were filed as an exhibit at trial. The Crown throughout the trial had presented various parts of what they considered to be relevant excerpts from the raw records. The PowerPoint presentation was a consolidation of the relevant aspects of the cell phone evidence into a comprehensive and user friendly format. Justice Boswell had the following to say about the end product:
What was produced was, in my view, an impressive effort. The presentation is two-hundred and thirty-one slides (pages) in length. It commences on October 24, 2010 and follows a chronological timeline to December 22, 2010, though only dates significant to the Crown are highlighted.
The presentation includes references to text and voice communications involving accused persons (including Eric Carty), and incorporates some banking records, some surveillance data, and a number of maps demonstrating when and where tower cell sites were accessed by particular phones.
The slides are, for the most part, based on a timeline format, with each accused person represented by their own individual timeline. Attached are the following appendices, which will assist in illustrating the content of the PowerPoint presentation:
Appendix "B" — A typical timeline slide;
Appendix "C" — A content slide, reflecting the known content of a particular text discussion; and,
Appendix "D" — A map slide. @paras 30-32
Earlier in the trial the Crown had proposed to call the author of the PowerPoint to explain how it was prepared and its contents. Justice Boswell held that the Crown would not be permitted to adduce the presentation. In so concluding the Court noted that although extremely helpful, reliable and extremely useful to the jury:
[t]he presentation is not, in and of itself, evidence. The contents of the presentation — the dates and times of phone calls and the parties involved, as well as the other bits and pieces of data included in it — are evidence. The presentation is merely a re-organizing of evidence tendered in a different format. It is an illustrative tool designed to demonstrate how some of the evidence adduced in the trial might fit together: @para 39 and also 2014 ONSC 4645 @para 29.
Defence counsel argued that the slideshow was no more than an advocacy tool and as such had no place in the jury room. Boswell J gave short shrift to this argument finding that:
I do not perceive "advocacy" to be a bad word. For better or worse, our trial system is built on the adversary model. Every step of the proceedings tends to have an element of advocacy to it. The determination of what evidence the Crown will call, in what order, and from whom, are all informed, at least in part, by advocacy considerations. The same can be said from the defence point of view: whether to call evidence, what evidence to call, and in what order are, again, decisions informed, in part, by advocacy considerations. The body of evidence that will go into the jury room and the manner in which it was presented are already infused with elements of advocacy. In other words, we're not going to eliminate advocacy from the process. The system is reliant on it.
What is important, however, is that the jury understand what is evidence and what is not; that they understand the purpose for any aid to comprehension, the proper ways in which the aid(s) may be used, and any limitations on them.
Some people may worry that if the court allows aids to go to the jury room that have some element of advocacy to them, that the "floodgates" will open and that counsel will begin to request that all sorts of material be available to juries during deliberations. Frankly, any such concerns are overblown. @paras 110-112
Ultimately Justice Boswell held that PowerPoint would be provided to the jurors. In so doing he noted that:
The jury system is capable of adapting to meet new challenges. Given rapid changes in technology, and in the techniques used by law enforcement to gather and process evidence, juries today are challenged by increasingly complex, voluminous and dense evidentiary records. They must be provided with the assistance they need, and deserve, to meet the challenge. @para 120