MCLNugget: McGuigan ONCA

York (Regional Municipality) v McGuigan, 2018 ONCA 1062

The Issue

Are the excerpts of a user manual related to the “testing and operation” of a speed measuring device subject to disclosure under the first party regime or production under the third party regime – as well as the related issue of relevance of such records.

The Answer

The “testing and operation” instructions contained in the user manual for speed measuring devices are subject to disclosure under the first party regime. While they are not fruits of the investigation, they are “obviously relevant” and thus disclosable.

The Fine Print

The issue came to the Court of Appeal via an appeal from a certiorari decision – of interest is that in a footnote in the ruling the court commented that the “writ of certiorari is no longer issued We use the phrase the “certiorari order” as shorthand for the more cumbersome “order in lieu of certiorari” [footnote 2]. The Justice of the Peace [JP] had ordered disclosure. The Crown succeeded in quashing that order on the review. The Court of Appeal reinstated the initial order. The notable points include:

First, here the JP had the jurisdiction to “determine disclosure issues and to grant or deny disclosure order…[and] to determine whether the disclosure sought fell within the first party or third party disclosure regime” [para 63].

Second, on the issue of the availability of certiorari, the court noted that s141(4) of the Provincial Offences Act limits such a review to cases where there is a “substantial wrong or miscarriage of justice” [para 58]. Properly considered, certiorari should not have been granted.

Third, the manual related to operation and testing is “obviously relevant” and falls under first party disclosure in line with the principles of R v McNeil, 2009 SCC 3.

MCLNugget: Colling SCC

R v Colling, 2018 SCC 23; affirming 2017 ABCA 286

The Issue

Whether the trial judge intervened in the trial in a manner that undermined the fairness of the trial or led to a reasonable apprehension of bias, warranting a new trial. First, by intervening in and limiting cross-examination. Second, by “entering the fray” and creating a reasonable apprehension of bias. Third, by limiting submissions on a defence raised.

The Answer

With respect to the intervention in cross-examination, the ABCA set out the test:

Interjections during the cross-examination of the prosecution’s witness may amount to trial unfairness, either actual or perceived. The test to determine whether such interventions compromised trial fairness is an objective one. “The ultimate question to be answered is not whether the accused was in fact prejudiced by the interventions but whether he might reasonably consider that he had not had a fair trial or whether a reasonably minded person who had been present throughout the trial would consider that the accused had not had a fair trial”: R v Valley, [1986] OJ No 77, 26 CCC (3d) 207 at 232, leave to appeal to SCC dismissed [1986] SCCA No 298 (QL). [@21]

With respect to entering the fray and creating an apprehension of bias, the ABCA set out the test:

When undue intervention is advanced as a ground of appeal, the ultimate question is whether the comments and interventions would create the appearance of an unfair trial to a reasonable person present throughout the trial proceedings. A trial judge must not question a witness in such a way as to convey an impression that the judge aligns himself or herself with the case for the Crown or the defence; question a witness in such a way as to make it impossible for counsel to present their case; or intervene to such an extent in a witness’s testimony that it prevents the witness from telling his or her story. Context is critical in assessing whether trial unfairness through undue intervention or a reasonable apprehension of bias have been made out. The impugned comments and interventions that are alleged to have compromised trial fairness or showed a reasonable apprehension of bias must be analyzed in light of the surrounding context and the particular facts of the case. [@39]

With respect to limiting a defence, no test was expressly set out.

The Fine Print

The Supreme Court agreed with the majority of the ABCA. That court held as follows.

With respect to the interventions in cross-examination, the court held that the trial judge is obligated to manage the trial and in this way is permitted to asked counsel to focus or move along. Here the relevance on the impugned line of questions was not clear and the trial judge’s interventions were not inappropriate. A reasonably minded person present throughout the trial would not consider the interventions to have rendered the trial unfair.

With respect to entering the fray and creating an apprehension of bias, the court held that trial judge did so on multiple occasions but must were largely for the purpose of clarifying the evidence. The interventions do not suggest a bias on the part of the judge. While it may have been preferable to adopt a more “restrained approach” the interventions do not give rise to a reasonable apprehension of bias.

With respect to limiting a defence, the ABCA held that the accused was not prevented from relying on a defence (honest but mistaken belief) and the trial judge ruled on it.


Reasoned Acceptance - Reasoned Rejection


RA was charged with sexual interference, invitation to sexual touching and sexual assault against a minor. The victim was RA’s daughter. The offences occurred when she was between the ages of 3 and 5 years old. The offences involved the accused having the complainant masturbate his penis until he ejaculated.

The victim testified. RA testified as well.

RA was convicted after trial. The trial judge note that the accused “testified in a straightforward manner, that he was not evasive and did not exaggerate, embellish or colour his evidence”, and that he “withstood cross-examination without a blemish” [para 4]. Notwithstanding these comments, RA was convicted. The trial judge accepted the complainant’s evidence in its entirety and found the offences were proven beyond a reasonable doubt.

RA appealed. The appeal was dismissed: 2017 ONCA 714.

On appeal RA raised the following points:

First, he submits that the trial judge failed to resolve a critical inconsistency in the complainant’s evidence and failed to explain why he accepted the complainant’s evidence and rejected the appellant’s. This ground was the focus of the appellant’s submissions during oral argument. Second, the appellant submits that the trial judge failed to consider innocent explanations for the complainant’s knowledge of a penis and sexual acts in determining whether a reasonable doubt arose. [Para 5].

On the issue of the trial judge’s explanation for accepting the complainant’s evidence and rejecting the accused’s evidence, the Court of Appeal offered the following:

This was a credibility case, and at the end of the day the core of the complainant’s allegations were unaffected by the inconsistency. They remained consistent throughout. The complainant provided graphic details as to how the assaults took place. The trial judge reviewed the evidence, cognizant of the shortcomings of the child complainant’s evidence, and ultimately decided to accept her evidence in its entirety.
The trial judge’s analysis reflects a careful and sensitive approach to the evidence as a whole and I see no error that would allow this court to intervene.
Although the trial judge’s reasons are relatively brief, they are responsive to the live issues in the case and the parties’ key arguments: R. v. Walker, 2008 SCC 34 (CanLII), [2008] 2 S.C.R. 245, at para. 20. The trial judge properly instructed himself as to the law, and in particular the requirements set out in W.D. The appellant was not entitled to an acquittal simply because his evidence did not raise any obvious problems. The trial judge did not accept the appellant’s evidence, but nor did he reject it simply because he accepted the complainant’s evidence.
The trial judge was entitled to reject the appellant’s evidence “based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of the conflicting credible evidence”: R. v. J.J.R.D. (2006), 2006 CanLII 40088 (ON CA), 218 O.A.C. 37 (C.A.), at para. 53. That is what occurred in this case. [Emphasis added]; [paras 53-56]

These comments are not novel: see for example R v PR, 2014 ONCA 131 @para 4; R v JW, 2014 ONCA 322 @para 26 and 30. Clearly, however, it seems they need to be reiterated. As the court notes, an acquittal is not necessary simply because a trial judge does not identify “obvious problems”. A reasoned acceptance, beyond a reasonable doubt, of the victim’s evidence is sufficient.

RA is a helpful reminder of a basic but important legal principle – take heed.


An end to unmeritorious "disclosure" applications?

David Jackson was arrested by the police. They police believed that his blood alcohol concentration was over the legal limit while he was operating a motor vehicle. Subsequent to arrest he provided breath samples into an approved instrument; the results indicated he was "over 80”. He was charged with “over 80”.

Prior to trial his counsel sought disclosure of (i) service records for the approved instrument; (ii) usage and calibration records; and (iii) downloaded data “bracketing the breath tests” of Jackson. The Crown refused to provide these materials citing their position that the records were third party records and were also clearly irrelevant. In response Jackson brought a disclosure motion before the trial judge.

The trial judge held that the records were subject to disclosure under Stinchcombe. The Crown and the police, the Ottawa Police Service, brought a certiorari application seeking to quash that ruling. That application was dismissed. The Crown appealed to the Ontario Court of Appeal: 2015 ONCA 832.

Several issues were dealt with at the Court of Appeal. Arguably two of the most pertinent ones dealt with the nature of the records and the potential relevance thereof.

With respect to the nature of the records, Watt JA offered the following overview of the governing principles:

First Party (Stinchcombe) Disclosure
Under Stinchcombe, the Crown has a broad duty to disclose all relevant, non-privileged information in its possession or control to persons charged with criminal offences. Disclosure of this information allows the person charged to understand the case she or he has to meet and permits him or her to make full answer and defence to the charges: Stinchcombe, at pp. 336-40; R. v. Quesnelle2014 SCC 46 (CanLII), [2014] 2 S.C.R. 390, at para. 11. The duty is triggered upon request without recourse to a court: McNeil, at para. 17.
For the purposes of first party or Stinchcombe disclosure, the term “the Crown” refers to the prosecuting Crown only, not to all Crown entities, federal and provincial. All other Crown entities, including the police, are third parties: Quesnelle, at para. 11;McNeil, at para. 22. Apart from the police duty to supply the prosecuting Crown with the fruits of the investigation, records in the hands of third parties, including the police and other Crown entities, are generally not subject to the Stinchcombe disclosure rules: Quesnelle, at para. 11; McNeil, at para. 25.
The assimilation of the police and Crown as a single entity for disclosure purposes is narrowly confined. Apart from the police duty to disclose to the Crown the fruits of the investigation, the two are unquestionably separate and independent entities, not only in fact but also in law. The police investigate. The Crown decides whether, what, whom and how to prosecute: McNeil, at paras. 23, 25. Production of criminal investigation files involving third parties, at least as a general rule, falls to be determined on an O’Connor application. This is so at least in the absence of a nexus between the third party and subject investigation: McNeil, at para. 25.
The Stinchcombe disclosure regime extends only to material relating to the accused’s case in the possession or control of the prosecuting Crown entity. This material is commonly described as the “fruits of the investigation”, that is to say, material gathered during the investigation of the offence with which the accused is charged: McNeil, at para. 23. Relevant information includes not only information related to those matters the Crown intends to adduce in evidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence: McNeil, at para. 17; Stinchcombe, at pp. 343-44.
Third Party (O’Connor) Production
A separate disclosure/production scheme exists for records and information in the hands of third parties, strangers to the litigation. This scarcely surprises. After all, third parties are under no obligation and have no duty to assist the parties in litigation or to disclose information to them: O’Connor, at para. 102.
The third party scheme involves two steps or stages. It is initiated by service of a subpoena duces tecum on the third party record-holder, as well as a notice of application and supporting material on the record holder and prosecuting authority: O’Connor, at para. 134. The purpose of the subpoena duces tecum is to have the material requested brought to the trial judge who will determine whether and to what extent the material will be produced. The application sets out the grounds upon which production is sought. The supporting material seeks to establish the relevance of the material to an issue at trial including:
i.               the unfolding of the narrative;
ii.             the credibility of a witness;
iii.           the reliability of other evidence; or
iv.           the competence of a witness to testify: O’Connor, at para. 134; McNeil, at paras. 27, 33.
 For the purposes of this third party production regime, a record-holder need not be a complete stranger to the litigation. Recall that Crown entities, other than the prosecuting Crown, are third parties under this regime: McNeil, at para. 13. And this is so even though some records of the same entity may be subject to the first party disclosure scheme of StinchcombeMcNeil, at para. 15. [Pars 79-85].

Applying those principles Watt JA held that the records sought were third party records. In so concluding Watt JA noted that “[t]wo principal factors determine the disclosure/production regime that will apply”. First, the nature of the information sought; second, the party in possession of the information.

On the first issue, the court offered the following.

With respect to the nature of the information here, Watt JA held that it fell beyond the boundaries of the fruits of the investigation; indeed some of the records were created in relation to other investigations and others were created by the police service for reasons and at times wholly unconnected to the investigation at hand [paras 92-96].

With respect to who was in possession of the records, Watt JA noted that in this case the records were not in the possession of the Crown but were in the possession of a third party, The Ottawa Police Service [paras 97-98].

On the second issue, the court offered the following.

With respect to relevance, Watt JA noted that Jackson had received the usual disclosure package including the following:

A videotape of the respondent providing breath samples. The police officer’s notes. The Intoxilyzer 8000C print out for the respondent’s test. The Certificate of an Analyst attesting to the alcohol standard. The Intoxilyzer instrument log, diagnostic tests and calibration checks. The certificate of the breath technician confirming the test results of 116 and 113 milligrams of alcohol per 100 millilitres of blood. [Para 133].

With this Watt JA noted that the other records sought did not meet the likely relevance threshold.

First, nothing on the face of the typical disclosure package provided to the respondent indicated any problem with the Intoxilyzer 8000C approved instrument or any error by the technician in its operation. No error in the test print outs. A new instrument, not due for its first annual inspection. No annual inspection or maintenance records. In short, nothing to imbue the claim of instrument malfunction or operator error with an air of reality. A fishing expedition. Season closed.
Second, the expert evidence about potential relevance of the record sought failed to ascend above the speculative. In addition, the suggestion of unspecified relevance is contradicted by the report of the Alcohol Test Committee that belies the assistance of the records sought in determining whether the instrument functioned properly for a particular subject test.
Third, the records sought have no relevance to the unfolding of the narrative of material events in this case. Historical data has nothing to say about what gave rise to this prosecution, nor about the credibility of any party involved in the making of demands or the operation of the instrument.
Fourth, the applicable standard in the third party/O’Connor production regime is more demanding than the “whether the information may be useful” criterion for first party/Stinchcombe disclosure. That a more stringent standard applies is consonant with the underlying policy considerations and the gatekeeper function assigned to the trial judge. [Paras 135-138].

Finally, and notably, Watt JA offered a “post-script”:  

It is critical for the efficient operation of trial courts, especially those in which alcohol-driving offences occupy a prominent place on the docket, that they be able to control their process. This includes the authority to discourage unmeritorious third party records applications that devour limited resources. [Emphasis added]; [para 139].


Protecting privilege, for everyone

Mike Rutigliano was a police officer. He was charged with various criminal offences including obstruct, breach of trust and fraud. As a result of a ruling related to a pre-trial motion the Crown stayed the proceedings. The Crown then appealed from that stay: 2015 ONCA 452.

Rutigliano was working for the OPP and was, at the time, responsible for the courts bureau at the Toronto detachment. An RCMP investigation uncovered ties between Rutigliano and organized crime individuals. As a result of a suspicious bank transaction he became the subject of an investigation.  As part of the investigation the police obtained four Part VI authorizations.

One of the pre-trial motions launched was an abuse of process motion seeking a stay of proceedings. The allegation of abuse related to the pursuit and obtainment of wiretap authorizations. In short, the abuse surrounded the actions of the police in their use of potentially privileged communications contrary to the Part VI authorization. The court outlined it this way:

Contrary to the wiretap authorization, his telephone communications were not live monitored but were automatically recorded and retained. The computer system was not set up in a way that would have permitted live monitoring. Summaries of intercepted solicitor calls were provided to the investigative team through daily call logs. Investigators examined communications with solicitors after they had been classified as “privileged” without obtaining a court order for access. Hundreds of presumptively privileged communications were intercepted and recorded. Summaries of intercepts with solicitors that should not have been intercepted were recorded, stored and disseminated to investigators. Summaries of the content of solicitor calls were relied on in an application to unseal some of the information gleaned from the first wiretap. In one case, although a live monitor warned that a communication with a solicitor was about to be intercepted through a room probe, an investigator listened to the entire call, knowing it was presumptively privileged.
In early 2009, the Commissioner of the OPP waived any privilege attached to any communications between Rutigliano and any Crown Attorney for the period January 1, 2004 to February 11, 2009. Investigators took this as authority to listen to and record all such communications and to access any such previous communications without obtaining court permission, although the wiretap authorizations forbade this practice. The waiver would have supported an order to unseal those communications, but did not authorize their interception or examination. Again, this conduct was said to be supported by legal advice. [@16 and 18].

The defence sought to explore this “privileged advice” about how to handle the wiretaps as part of its abuse of process motion. The motion judge ordered the communications between the investigators and the Crown to be produced for his inspection, despite the assertion by the Crown that it was covered by solicitor-client privilege.

The Crown then stayed the proceeding and appealed.

The first issue on appeal was whether the appeal itself was an abuse of process. The court held that it was not. Citing United States of America v. Fafalios, 2012 ONCA 365 the court accepted that such a decision by the Crown could be permissible if: (1) the effect of the interlocutory ruling is to leave the Crown without a case, or (2) “compliance with the interlocutory order raises a reasonable prospect of harm to an interest the court deems worthy of protection”. [@34].

In this case the criteria were satisfied: I accept that, in the circumstances of this case, there was a reasonable prospect that continuing with the proceeding would have resulted in an abrogation of solicitor-client privilege, which is an interest worthy of legal protection. [@37].

The second issue was whether the privileged had been waived by officers during their testimony on the motion – by indicating they had advice from the Crown. The court agreed with the motion judge that privileged had not been waived. Part of the reason was that the individual officers lacked the authority to waive the privilege, but the court also noted:

The motion judge further held that, quite apart from the authority-to-waive issue, officers’ responses to questions in cross-examination about why they undertook the course of action they did was not sufficient to trigger a waiver of solicitor-client privilege. As witnesses, the officers were bound to answer the questions put to them and this could not amount to waiver of solicitor-client privilege. [@40].

A third issue dealt with on appeal was whether the ruling – aside from the merits of the issue – was premature or unnecessary. The court concluded that it was:

I agree with the Crown’s position that, in the circumstances, the disclosure order was premature. Even if it is open to a court to order disclosure of privileged communications between the Crown and police in the abuse of process context, the Supreme Court has made it clear that solicitor-client privilege should only be abrogated as a last resort.
In my view, the motion judge erred in ordering production of privileged materials prematurely and absent a finding of necessity, that is to say, a finding that there was no other way of establishing an abuse of process and obtaining a stay. He should have waited until at least the end of the abuse of process motion, and applied the R v. Babos test for abuse of process, at para. 32, without the privileged information. [@50 and 59].

The appeal was allowed and the matter remitted to the motion judge. Rutigliano is a very interesting case and the court’s ruling offers some helpful guidance on this issue. It is interesting – and important – to track the court’s handling of solicitor-client privilege in a way that is uniform regardless of whom the client is. This important privilege must be respected by the courts and this ruling goes a long way toward that end.


Silence: A right, yes; an innocent explanation, no

Albert Brown lived in an apartment. He was the only male living there. The police obtained a warrant to search the apartment for drugs and drug related items. They found both. In a pair of pants hanging on the bathroom door they found 17 one gram packets of cocaine as well as $1275; elsewhere they found a digital scale with cocaine residue on it and bulk marijuana. Brown was charged. He was convicted. He appealed: 2015 ONCA 220.

On appeal Brown argued (i) that the trial judge erred in not excluding the items recovered in the search under 24(2) and (ii) that the verdict was unreasonable.

With respect to the first ground, the Court of Appeal noted that Brown must establish that “the trial judge erred in principle, considered irrelevant facts, or made unreasonable findings” [@6]. Brown failed to do so, that ground was dismissed.

With respect to the reasonableness of the finding, Brown argued that it was unreasonable to conclude that the pants in the bathroom were his. The court rejected this ground.

The appellant places specific emphasis on the police officer’s opinion that the pants found in the bathroom containing the cocaine “could fit the appellant”. He argues that this is not sufficient to prove ownership of the pants, thus knowledge of and control over the cocaine in a pocket, beyond a reasonable doubt. However, the whole of the circumstantial evidence – including the fact that an investigating police officer said the pants belonged to a man and that the appellant was the only man living in the apartment – was sufficient to find the appellant in constructive possession of the cocaine. [@9].

Notably, the court commented on the fact that Brown had not testified in concluding that the verdict was reasonable:

We note that there was no explanation whatsoever for the presence of the cocaine in the appellant’s bathroom. He chose not to testify. This court, when considering the reasonableness of a verdict, is entitled to treat an appellant's silence as indicating that the appellant could not provide an innocent explanation of his or her conduct: see R. v. Dell, [2005] O.J. No. 863 (C.A.), at para. 35. [Emphasis added]; [@10].

This principle is certainly not new, but it seems that it bears repeating once and a while.


What's in a name?

SH and MH were the parents of a young girl M. She died. They failed to provide the necessaries of life and were convicted of manslaughter. During the trial an order prohibiting the publication of the names of and any other information that would tend to identify M’s surviving siblings, was granted. That order included the surname H, which was a rather uncommon name.

In seeking the initial publication ban the Crown argued that the stigma of the parents’ conviction would follow the surviving children for the rest of their lives.

The Toronto Star applied to vary or set aside a publication ban. The Crown consented that the order could be narrowed to prohibit only the names of the surviving siblings and allow for the publication of the names of the victim and the offenders.

The Court appointed amicus curiae, Justice for Children and Youth, in order to make submissions in support of the original broad ban: 2015 CarswellOnt 821 (SC)

In support of the application amicus filed an affidavit highlighting the uniqueness of the family surname.

The Toronto Star in turn filed an affidavit, which cited examples of six reported cases in Toronto newspapers where the names of parents convicted in the deaths of their children were published but the names of surviving siblings were not. In some of those cases the surnames were rather uncommon.

Sproat J first considered the applicable legal framework under the Dagenais-Mentuck test.

Turning to the first step of the test Sproat J considered whether the publication ban is necessary to prevent a serious risk to the proper administration of justice or the protection of a public interest @para 19.

The Court accepted that both provincial and federal legislation provides for the restriction of publication of the names of those under 18. For example the Child and Family Services Act prohibits naming those involved in child protection proceedings. Similarly the Code prohibits naming young persons who are charged with or victims of Criminal Code offences.

It was also accepted by the court that the surviving siblings in this case met the definition of victims and would “fall within the class of persons entitled to provide a victim impact statement at a sentencing hearing.” @para 21

In assessing whether the public interest could only be addresses by a publication ban:

the reality is that the surviving siblings have suffered the death of their sibling and are now, or will become, aware that both their parents were criminally responsible for the death. A significant number of people must already know the identities of all concerned. This no doubt includes some family, friends, neighbours, teachers and health care professionals. The death of a sister, particularly given the culpability of the parents, will no doubt cause "dreadfully painful times" for the surviving siblings. That is the baseline. Nothing a publication ban can do will change that. @para 23

Thus, the Court concluded at the first stage that the publication ban was not necessary to prevent a serious risk to public harm. Notwithstanding this finding the Court went on to consider the second stage of the test.

At the second stage of the test the Court considered the effect of this type of litigation based on how common and uncommon a name is would be:

fertile ground for experts and litigation over just how common or uncommon a surname is; over what geographic area names should be compared; and to what extent should similar sounding but differently spelled surnames be considered. As a practical matter litigating publication bans, particularly if experts are required, will tend to mean that the affluent are much more likely to be able to shelter under publication bans. @para 40

Taking an approach that would be minimally impairing on the open court principle the Court noted that the public would have a significant interest in the names of convicted offenders, particularly those guilty of homicide. In contrast, citizens would have a minimal interest in the name of a victim. @para 41.

As such the Court accepted what was effectively the joint submission of Crown and media for the narrowed publication ban where the names of the surviving siblings would remain protected. 


Giving Juries the Right Tools to Make Just Decisions

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


Big is Back: R v Mack

A few months back, fellow MCL blogger Brian Holowka reviewed the latest pronouncement from the Supreme Court of Canada in R v Hart regarding Mr. Big operations: The Mr Big Operation: The SCC constrains but does not eliminate the practice.

In the Hart decision, the Supreme Court created a new common rule that now governs whether or not the results of a Mr. Big undercover operation should be admitted into evidence: R v Hart, 2014 SCC 52.

Hart was heard with a companion case:  R v Mack, 2014 SCC 58. Mack was convicted at trial of first-degree murder. During the course of an undercover Mr. Big operation, Mack confessed to killing his roommate. He provided the undercover officers with a number of details about the murder, including the reasons he did it and the location of the body’s remains – which Mack had reduced to ashes. The Mr. Big confessions went to the jury for consideration, with an instruction from the trial judge that addressed any concerns about the confession’s reliability and potential for prejudice [para 56].

Mack appealed from conviction to the Alberta Court of Appeal, where his conviction was affirmed: 2012 ABCA 42.

On appeal to the Supreme Court, Mack advanced three arguments. Two of the three were concerned with the evidence gleaned from the Mr. Big operation. Mack argued that:

  1. The trial judge should have excluded the confessions he made to the undercover officers pursuant to s. 24(2) of the Charter; and,
  2. If the confessions were admissible, the charge to the jury was inadequate as to the dangers associated with them [para 2].

With respect to the first argument, the Supreme Court began by recognizing that Mack did not have the benefit of advancing an argument that the confessions should have been excluded pursuant to the new Hart framework. The two-pronged Hart rule dictates that a Mr. Big confession will be excluded where its prejudicial effect outweighs its probative value, or where it is the product of an abuse of process [para 32].

The Court applied the Hart framework to Mack’s case. The first prong involves a balancing of the probative value of the confession against any prejudicial effect.

Concerning the confession’s probative value, the Court found:

  • The inducements provided by the officers were modest;
  • The Appellant had well-paying, legitimate work readily available to him;
  • The Appellant was not threatened by the officers;
  • The Appellant was told that he could decline to say anything, an option he initially accepted [para 33].

Further, the Court concluded that there was “an abundance of evidence” that was potentially confirmatory. This included:

  • The testimony of two other witnesses that described the same motive for killing that Mack had told the undercover officers;
  • The fact that the Appellant led the undercover officers to a fire pit where his roommate’s remained lay yet undiscovered; and,
  • The fact that shell casings fired from a gun found in the Appellant’s apartment were found in the same fire pit the Appellant led the officers to.

These factors, taken together, made the confession “highly probative” [para 34].

Concerning the confession’s prejudicial effect, the Court found any prejudice was limited. The Court considered that:

  • Mack did not partake in any scenarios that involved violence;
  • The operation did not reveal prejudicial facts about the Appellant’s past history; and,
  • Mack’s role was limited to assisting with the repossession of vehicles and delivering of packages [para 35].

The Court concluded that “any prejudicial effect arising from the Mr. Big confessions is easily outweighed by their probative value” [para 35]. Under the first prong of the Hart test, the confessions would have been admitted.

The second prong of the Hart framework involves determining whether the police officers conducting the Mr. Big operation engaged in any improper conduct, that could ground an application for abuse of process [para 36]. Here, the Supreme Court found that:

  • Mack was not presented with overwhelming inducements;
  • Mack had legitimate prospects for work, that would have paid even more than what the undercover officers were offering;
  • The officers did not threaten Mack with violence if he didn’t confess ; and,
  • The officers made it explicitly clear that Mack did not have to speak with them [para 36].

The Supreme Court found that at most, the officers created “an air of intimidation” by referring to violent acts committed by members of the fictional organization, but this did not mean that Mack was coerced into confessing [para 36].

Under the second prong of the Hart test, the confessions would also have been admitted.

Although the Court ultimately dismissed Mack’s first ground of appeal for the exclusion of evidence based on s. 24(2) of the Charter, the Court also concluded that the confessions would “clearly be admissible under [the Hart] framework” [para 32]. As such, Mack’s first argument was dismissed.

With respect to the second argument, the Court reiterated that there are two major evidentiary concerns arising out of Mr. Big operations: the reliability of such confessions, and the bad character evidence that invariably accompanies them [para 43].

The Court found that while the Hart rule is intended to respond to these concerns, it does not purport to erase them entirely. It falls to the trial judge to adequately, but not perfectly, instruct the jury as to how to approach these confessions in reaching a verdict [paras 44, 48].

The approach taken by the British Columbia Court of Appeal in both R v Terrico, 2005 BCCA 361 and R v Fry, 2011 BCCA 381, was endorsed by the Supreme Court. Jury instructions that pertain to Mr. Big operations should be subject to a contextual, case-by-case review. There is no “magical incantation” that must be read to juries in all Mr. Big cases; the nature and extent of instruction will vary from case to case [para 49].

The Court did offer some additional guidance, but no prescriptive formula, for trial judges to consider when instructing a jury. Juries should be informed that the reliability of such a confession is a question for them to answer, and will necessarily be impacted by both the circumstances in which the confession was made and the details contained in the confession itself [para 52].

As articulated in Hart, the trial judge should alert the jury to:

  • The length of the operation;
  • The number of interactions;
  • The nature of the relationship established;
  • The nature and extent of inducements offered;
  • The presence of any threats;
  • The conduct of the interrogation itself; and,
  • The personality of the accused [para 52, citing Hart at para 102].

Further, the trial judge should discuss that the confession itself may contain markers of reliability or unreliability. Juries should consider whether the confession led to the discovery of additional evidence, whether it identified any elements of the crime not publicly known, or whether it described mundane details of the crime the accused would likely not have known had he not committed it [para 53, citing Hart @ para 105).

Finally, the Supreme Court emphasized that the jury should be reminded that such a confession is admitted for the limited purpose of providing context for the confession, and cannot rely on the confession to determine whether the accused is guilty. The jury should also be reminded of the state’s role in simulating and encouraging criminal activity [para 55].

On the second ground of appeal advanced by Mack concerning Mr. Big operations, the Court found that trial judge’s instructions were adequate and revealed no error [para 58]. As such, Mack’s argument was again dismissed.


In reviewing the Hart decision for MCL, Mr. Holowka properly highlighted that Mr. Big operations are often spawned due to a dearth of other evidence, the results of which may now be difficult to admit if corroborative evidence is lacking. However, the Mack decision places important emphasis on the fact that it is not to be presumed that prejudice, coercion, or abusive tactics are necessarily present in all Mr. Big operations. Courts must still be alive to the significantly probative evidence that this investigative technique can generate. Although Hart may have left the Mr. Big technique alive, but only barely; Mack offers vital resuscitation.


Missing Magic Incantations aren't Fatal

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.