New & Notable: Putting the focus of expert evidence in the right spot...

David Murray was convicted of impaired driving causing bodily harm and dangerous driving after flipping his car into a ditch leaving himself and his 90-year-old mother hanging upside down from their seatbelts.  The Crown relied on the evidence of a toxicologist who determined Murray’s blood alcohol concentration from blood samples taken at the hospital.  In his appeal to the Ontario Court of Appeal, Murray challenged the validity of the search warrant to obtain the results of the blood testing.  He also argued that the results of the blood testing should not have been admitted nor given any weight because the hospital lab technician provided no details about the equipment used to conduct the testing or its reliability.  The Ontario Court of Appeal rejected both arguments: 2013 ONCA 173.


The search warrant issue

Murray argued that there was nothing in the Information to Obtain the warrant (“ITO”) to indicate that the hospital would test or had tested the appellant’s blood for blood alcohol content.

The Court of Appeal considered the following details set out in the ITO:

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New & Notable: Cell Phone Evidence

A debate has been brewing for the last few years over the issue of cell phone evidence.  In Ontario there have been decisions holding that evidence about cell phone records, including interpreting the records, identifying tower locations and explaining the way in which phones communicate with towers is expert evidence requiring a voir dire; those decisions also held that the usual witnesses (corporate security personnel who gather the evidence and have, for several years testified in this area) are not "experts" on this issue: see R v Spackman, [2009] OJ No 1066 (SCJ) and R v MacFarlane, [2006] OJ No 4858 (SCJ)
In Manitoba, on the other hand, there have been decisions holding that such evidence is not in fact "expert" evidence but rather it was factual evidence: see R v Korski, [2007] MJ No 275 (QB), aff'd 2009 MBCA 37.
In the recent case of R v Hamilton, 2011 ONCA 399 the Ontario Court of Appeal has sided with the Manitoba approach, implicitly overruling MacFarlane and Spackman - at least in part. In Hamilton, for the first time on appeal, the appellants argued that the trial judge erred in admitting the evidence of non-engineers and erred by failing to conduct a voir dire.  The Court of Appeal rejected this argument on the basis, inter alia, that the evidence in question is not expert evidence: 
...we are satisfied that the evidence given by the three employees of the carrier companies was factual evidence, not opinion evidence.  Each of them, by reason of their knowledge, observation and experience in dealing with cell phones for their respective companies could give the testimony they provided without being qualified as experts. They could testify about the times each appellant’s cell phone registered, the number calling and the number called, the duration of the call and the location of the towers at which the calls registered.  These were factual details on which the carriers based their billing practices.  Further, these employees had the knowledge and experience to testify about the general rule and its exceptions.  They did not have to understand the scientific and technical underpinnings of the rule or have an engineering degree to give this evidence. 
It is perhaps understandable why some courts in years past treated this kind of evidence as opinion evidence.  The introduction of cell phone evidence in criminal trials was in its infancy. Now, with the benefit of hindsight, we know that this evidence is routinely admitted: see, for example, R. v. Tomlinson, [2008] O.J. No. 817 (S.C.J.), R. v. H.B., [2009] O.J. No. 1088 (S.C.J.), R. v. Smith, [2009] O.J. No. 4544 (S.C.J.).
Even if evidence about the general rule and its exceptions could at one time have been considered opinion evidence, it is now simply factual evidence that witnesses with the knowledge and experience of Mr. Rickard, Mr. Iaccio and Ms. Hopper can testify about. They were not proffering a novel scientific or behavioral theory that was open to debate. They were testifying about uncontroversial facts related to the operation of cell phone networks. As the trial judge noted, their evidence was essentially the same as the evidence that could have been given by an engineer. Indeed, an engineer, Mr. Wang, gave largely the same evidence about the general rule at the preliminary inquiry. With the benefit of that testimony, no appellant insisted that an engineer give this evidence at trial. 
Importantly, none of the three cell phone witnesses was asked to give an opinion about the precise location of an appellant’s cell phone when a particular call was made or received. Evidence of that nature might well be opinion evidence and subject to the Mohan criteria: see R. v. Ranger, 2010 ONCA 759, at para. 17. Testimony about the general rule and its exceptions is not opinion evidence, and thus no voir dire was necessary. 
Accordingly, we do not give effect to the appellants’ challenge to the admissibility of the cell phone evidence. [paras 277-284] [emphasis added].
DG Mack