Get your conjunctions right and/or don't - Doesn't Matter

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LB was killed in his own home by a single gunshot to the chest. Van Every was convicted of second degree murder in the death of his friend who was also the second in command of his drug dealing business.

The Crown’s theory was that Van Every murdered his friend because LB had disrespected him earlier that evening. The Crown argued that it was a planned and deliberate murder. The defence on the other hand argued that JG, another friend and drug dealer who was also present in the home on the night of the murder was the real killer but that if Van Every was the shooter, well he was too drunk to form the requisite intent.

Over the course of his charge to the jury Whitten J misstated the requisite intent for murder. Several times throughout the charge the trial judge stated that to find that Van Every had the intent for murder the jury would have to be satisfied that: Van Every intended to kill LB or to cause bodily harm that he knew was likely to cause death OR was reckless whether or not LB would die.

The correct wording for the intent for murder is as follows; Van Every intended to kill LB or cause bodily harm that he knew was likely to cause death AND was reckless whether or not LB would die.

Van Every appealed his conviction and sentence: 2016 ONCA 87.  One of the grounds of appeal was the trial judge’s misstatement of the requisite intent for murder. 

van Rensberg writing for a unanimous Court dismissed the appeal. As a starting point the Court noted that something more than a legal error is required before there is appellate intervention. The test is “was there a substantial wrong or miscarriage of justice caused by this error, on this evidence at trial.” [citing Watt JA in R v Moo, 2009 ONCA 645 at para 68]

The Court concluded that when the instructions were considered as whole and given the positions taken by the Crown and the defence “it is inconceivable that the jury would have understood the instruction the way the Appellant now contends – that they could find the appellant guilty of murder if he had recklessly caused LB’s death, and that they would have found him guilty of second degree murder on that basis.” [at para 52]

van Rensberg offered four reasons for this conclusion.

First, the incorrect words must be read in context of the instructions on intent as a whole. In every instance that the judge described the intent for murder he correctly framed the intent as having two alternatives: the intent to kill or the intent to cause bodily harm likely to kill. In fact on several occasions the trial judge referred to each of these alternatives by a shorthand “intent to kill or intent to cause bodily harm. This, the Court of Appeal held “is inconsistent with a third and freestanding intent for murder, that of “recklessness”, which the trial judge did not further explain.” [at para 53]

Second, no one noticed the mistakes at trial, even though it was made repeatedly. The Court of Appeal noted this in the context of concluding that the mistake was immaterial. [at para 54]. In fact counsel had draft copies of the charge which contained the erroneous wording. “There was no objection to that part of the charge at any time during the trial: not in the pre-charge conference, not when the trial judge reviewed the draft decision tree with counsel and repeated the erroneous wording three times, not when the trial judge solicited comments from counsel during one of several breaks in reading his charge, and not after the charge was given.” [at para 56]

Third, both the closing addresses and the balance of the jury charge clearly indicate that recklessness as an independent route to establishing the mens rea for murder was simply not in play.  [at para 57]

van Rensberg concluded the analysis by looking at the parole ineligibility recommendations of the jurors as a gauge for their views on the level of intent. The Court noted that:

although one can never know precisely how the jury arrived at its verdict in the present case, its recommendations on parole ineligibility shed some light on how they viewed the case. Five jurors recommended 25 years before Van Every was eligible for parole. Two recommended 20 years. Three recommended between 15 and 18 years. Two abstained. As the trial judge noted at the sentencing hearing: “Now obviously from that statistic, the jury, the members of this community were of the view that this was a serious second degree murder and it would indicate seriousness which became closely akin to that associated with first degree murder”. This belies appellate counsel’s suggestion that the jury “may well have” convicted Van Every based on mere recklessness. [at para 67]

Being nitpicky about grammar isn’t going to overturn a murder conviction… unless maybe you were nitpicky the first time around too.

LT

Giving Juries the Right Tools to Make Just Decisions

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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

LT

Missing Magic Incantations aren't Fatal

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EH was convicted of sexual offences perpetrated against a 4yr old.  Her video and audio recorded statement to police was tendered at trial pursuant to section 715.1 of the Code. She also testified via closed circuit television in accordance with section 486.2 of the Code.

The evidence revealed that on several occasions while sitting on a couch watching television EH took the child’s hand and placed it on his penis. EH would then remove her hand and tell the child that he loved her.

At trial, EH testified that on a single occasion, out of the blue, the child put her hand down his shorts and touched his penis; at the time he was not wearing underwear.  EH said this caused him to panic- he ran upstairs put on pants, a belt and a shirt.

The jury convicted EH and he appealed: 2014 ONCA 622. One of the grounds of appeal EH argued was that although the trial judge had clearly stated in the pre-charge conference that a WD instruction would be given to the jury, the final charge did not include such an instruction or the functional equivalent thereof.

The Court of Appeal held that in these circumstances their task was “to determine whether the final instructions, viewed as a whole, would have left the jury under any misapprehension about the applicable burden and standard of proof” @para 6. The Court dismissed the appeal for four compelling reasons.

First, the Court noted “that the W.D. formula is not some magic incantation, omission of which is fatal” @para 9. What matters is whether the jury understood that that at the end of the day they had to simply chose between two competition versions of events. The Court found that instructions in substance did not leave the jury with an erroneous view.

Second, the Court held that the instructions on the core criminal law concepts of the presumption of innocence, the burden of proof and the standard of proof were all entirely complete and correct.

Third, the Court importantly noted that the charge does not take place in isolation. It is preceded by the closing addresses of counsel. Those addresses are not substitutes for a deficient charge but they “may fill some gaps left in the charge” @para 11.  In this case the Court noted that “the closing addresses of both counsel tracked the W.D. framework. Nothing in the charge contradicted or qualified what counsel said” @para 11.

Lastly and perhaps not surprisingly the Court relied on the fact that EH made no objection to the charge at trial.

Although WD has been the subject of much judicial scrutiny, the decision in EH is not at all surprising when one considers the circumstances of the seminal decision itself. In WD the trial judge in fact erroneously instructed the jury that they were engaged in a credibility contest, yet the conviction was upheld. In EH the Court of Appeal clearly found the functional equivalent of a proper WD instruction even in the absence of the magic credibility incantation. 

LT