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

Quotable Quotes: The Criminal Trial

In the recent case of R v Hamilton, 2011 ONCA 399 the Ontario Court of Appeal considered the issue of interventions by the trial judge during a long and difficult murder trial. Two of the appellants argued on appeal that various interventions by the trial judge undermined the fairness of the trial [paras 35-42]. 
In dealing with this ground of appeal, the court first offered the following succinct summary on the approach to this issue:
When evaluating interventions by a trial judge, the fundamental question is whether the interventions led to an unfair trial: R v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.), at p. 232, application for leave to appeal dismissed, [1986] S.C.C.A. No. 62. This assessment is made from the perspective of a reasonable observer present throughout the trial: R v. Stucky (2009), 240 C.C.C. (3d) 141 (Ont. C.A.), at para. 72.  Isolated expressions of impatience or annoyance by a trial judge as a result of frustrations, particularly with counsel, do not in themselves create unfairness [para 30].
After reviewing in detail the impugned interventions, the Court of Appeal offered the following quotable quote:
At a time when we are concerned about the increasing cost and length of criminal trials as well as their drain on resources and the pressures they bring to bear on the administration of justice, appropriate trial management is to be encouraged, not muted. In a case of this complexity and size, a good deal of deference is owed to an experienced trial judge who lived those dynamics for many months; dynamics that must have impacted on his decision to intervene from time to time. A microscopic analysis of interventions by a trial judge in large cases such as this should be avoided [para 49] [emphasis added].

DG Mack

New & Notable: Crown Jury Closing

Crown counsel are held to a high standard in the criminal justice system; assisting the court in one of its fundamental roles, the search for the truth, the Crown is expected to fulfil a dual role - vigorously prosecuting their case while acting as ministers of justice.  In the recent case of R v LeBrocq, 2011 ONCA 405, an apparent reference to this fact during closing submissions to the jury became the subject of an appeal.
During her closing submissions Crown counsel commented on her approach to the cross-examination of the accused, who was charged with several counts of sexual assault: "My duty is to test his evidence.  I'm not trying to be mean to him or make him look bad.  I have to test the veracity and truth of what he says.  I have duties to the court[.]" [emphasis added] [para 27]. 
The appellant argued that this was an improper comment which had the potential to "impermissibly elevate the Crown in the jury's eyes by suggesting that Crown counsel was impartial and that her submissions were motivated by her duty to the court to test the veracity of the appellant's evidence" [para 27].  The Court of Appeal disagreed:
These comments were not improper in our view.  In fact they accurately reflect the duty and obligation of Crown counsel and her position at trial... [emphasis added] [para 28].

DG Mack

Quotable Quotes: Investigative Detention

Investigative detention seems to be one of the hottest topics of litigation lately.  In the recent case Ontario Court of Appeal decision, R v Amofa, 2011 ONCA 368, 2011 CarswellOnt 3037, [2011] OJ No 2095, the court offers some helpful insight into this policing power and in doing so provides a Quotable Quote.  

 

In Amofa the police were involved in an initiative called the "Robbery Reduction Program" which was aimed at providing police presence in high crime areas including subway stops in Scarborough.  While working in this capacity the police identified two individuals who were behaving suspiciously and who the police ultimately believed were about to become involved in a robbery or mugging.  After approaching one of the suspects the police advised him that there was going to be a search of his person during an investigative detention.  The suspect resisted this notion indicating that he would "search himself".  This notion did not go over well and a "violent struggle ensued".  Ultimately a firearm was located on the suspect.

 

In rejecting the ground of appeal relating to the failed section 8 motion, Blair JA notes that the consideration and analysis of section 8 issues is not a static point-in-time one and offers the following helpful comment:

The flow of the investigative detention, the arrest and the search was a dynamic process.  Section 8 analyses ought not be reduced to an over-analytical parsing of events into static moments without practical regard for the overall picture [para 19].

DG Mack

Comment: Roadside Statements

The recent decision of R v Rivera, 2011 ONCA 225, 2011 CarswellOnt 1785, [2011] OJ No 1323 is a particularly notable case which will undoubtedly change the face of refusal and failure trials. The issue considered by the Court of Appeal was whether statements made by an accused, during the course of refusing or failing to comply with a breath demand, are admissible (with or without a voir dire) and if so, what use may be made of them.
The accused in Rivera was stopped at a RIDE check and after forming a reasonable suspicion the attending officer made a demand under section 254(2) of the Code. After 21 failed attempts the accused was charged with failure.
At trial the officer testified that during the course of the 21 attempts the accused was offering several comments including the following: “I only had two glasses of wine”; “I only had one beer”; “I work for you. I work in the office” [referring to the OPP office]; “I work for the OPP. I’ll lose my job, don’t do this to me. I only had one beer. I was just taking myself home.”; “Why are you doing this to me? There are criminals out there.” [paras 10-12].
The accused testified at trial. The accused was convicted. In convicting the accused the trial judge relied on the roadside statements to reject the evidence of the accused [paras 22-31].
On appeal LaForme JA, for the court, tackled the issue of the use of the roadside statements. Citing R v Morrison,2006 CanLII 12722 (ONSC) and R v Bijelic, 2008 CanLII 17654 (ONSC), LaForme JA held that while roadside statements that are part of the actus reus are admissible, they are only admissible for the purpose of proving the actus reus and not for the purpose of attacking the credibility of the accused [paras 66-98].
In so ruling LaForme JA also considered the issue of what is and what is not part of the actus reus of the offence:  
...her statements to the effect that she worked for the O.P.P., cannot accurately be characterized as evidence of the actus reus of the offence of refusal in the circumstances. Her various statements about the amount she had to drink could not be taken as indicating that she was refusing or failing to give a breath sample. This is also the case with her statements - "I work for the O.P.P. I'll lose my job" and, "Give me another chance. Don't do this to me. I don't want to lose my job. Why are you doing this to me?" (emphasis added). These statements cannot be said to constitute the gravamen or foundation of the offence of refusal or failure to blow, as contemplated by this court in Stapleton, Hanneson and Ha [para 93].
By way of contrast, LaForme JA noted that the comment, “I don’t care, charge me”, from Bijelic, would properly be considered as part of the actus reus.
With respect, this is perhaps an overly restrictive view of what constitutes the actus reus of the offence. It is worth noting in this regard, that the comment “I work for the O.P.P. I'll lose my job, don't do this to me. I only had one beer. I was just taking myself home." came immediately after the officer had warned the accused (after 10 attempts) that she could be charged criminally.
In considering whether these comments constitute part of the actus reus, it must be kept in mind that the offence can be committed in two ways: failing or refusing. Where an accused fails (as opposed to refuses) to provide a sample - as was the case in Rivera - comments, made by the accused during, and I say, as part of their failed attempts to provide a sample, must be put in context; and even though they may not constitute a "refusal" on their face, they may and likely are nonetheless part of the actus reus.
In fairness, LaForme JA does not draw any bright lines about what will and will not be part of the actus reus, noting that it will be for the trial judge to determine “on the facts of the case whether a particular roadside statement can properly be considered as evidence of the actus reus” [para 94]. On this point, LaForme JA notes that a voir dire may be required to determine what is and what is not part of the actus reus.
While previous rulings in R v Stapleton, 1982 CarswellOnt 62, [1982] OJ No 49 (CA), R v Hanneson, 1989 CarswellOnt 102, [1989] OJ No 1067 had clearly abolished any need for a voir dire on roadside statements in refusal and failure cases, Rivera appears to have ushered in a new era of voir dires on any refusal or failure case.
DG Mack

New & Notable: Google Maps

While it is undoubtedly not the most ground breaking decision, the Ontario Court of Appeal's recent ruling in R v Calvert, 2011 ONCA 579 is nonetheless noteworthy. The issue upon which the appellant sought leave to appeal was the trial judge's decision, on his own initiative, to use Google maps to consider the issue of ASAP in an impaired case.

In dismissing the leave application the Court of Appeal offered the following:
...it was reasonable for the trial judge to take judicial notice of the distance between the arrest scene and the police station. In this regard, we note that the appellant accepts that generally speaking maps may be relied on by the courts when taking judicial notice because maps are a readily accessible source of indisputable accuracy [para 8].
DG Mack

New & Notable: Investigative Detention; Search and Abandonment

R v Plummer, 2011 ONCA 350, [2011] OJ No 2034 - In the recent decision of Plummer the Court of Appeal offers helpful guidance on the ever challenging issue of investigative detention and search; of particular note, in my opinion, is the court's consideration of abandonment. 
The appellant was seated in his girlfriend’s car in a lane way – which prohibited parking – outside her residence. As he waited there officers drove past the lane way and as they looked at the appellant they noted he appeared shocked or surprised. The officers testified that they were familiar with the door way near where the car was parked as being one where drug transactions would occur. As they passed by the officers also noted the appellant appear to bend forward in his seat in a motion the officers believed was consistent with concealing drugs.
The officers made a u-turn and returned to the vehicle. After approaching and obtaining the appellant’s name one of the officer’s recognized the appellant’s name as being associated to an internal bulletin indicating that he may be armed and in possession of a bullet proof vest [paras 6-8].
The officer then returned to the vehicle, believing he had grounds to do a pat-down search for safety, and asked the appellant to exit the vehicle for that purpose [paras 9-10]. As the officer conducted the pat-down search he noted a bullet proof vest and thereafter decided to search the car to look for a gun [paras 10-11]. Once inside the car the officer located a gun in a bag; the appellant fled while the officer was searching the car [para 12].
At trial the appellant sought to exclude the incriminating evidence based on alleged violations of sections 8 and 9. With respect to the detention, Durno J held that the “constellation” of factors justified an investigative detention [para 14]. With respect to the search, Durno J further held that the initial pat-down search was justified based on officer safety concerns and that the further search of the motor vehicle was a logical and permissible extension of the initial pat-down search and discovery of the vest [paras 15-17].
On appeal the court first considered the issue of investigative detention in the context of section 9. In doing so, the court rejected the argument that the trial judge improperly relied upon the “suspicious” conduct of the accused, as noted by the officers, citing in support R v Clayton, 2007 SCC 32, 2007 CarswellOnt 4268, [2007] SCJ No 32; R v Nesbeth, 2008 ONCA 579, 2008 CarswellOnt 4697, [2008] OJ No 3086; and R v Dene, 2010 ONCA 796, 2010 CarswellOnt 8800, [2010] OJ No 5012 at para 4. The court further rejected the argument that the reliance upon the officer alert by the trial judge was misplaced. In the circumstances, considered in context, the court held there was a basis for investigative detention.
Turning to the search conducted incident thereto, the court first considered the issue of standing. The Court of Appeal agreed with the Crown that the accused did not have standing as there had been abandonment. Citing the very informative decisions of R v LB, 2007 ONCA 596, 2007 CarswellOnt 5472, [2007] OJ No 3290 and R v Nesbeth, 2008 ONCA 579, 2008 CarswellOnt 4697, [2008] OJ No 3086 the court found there had been a “double abandonment”. First the appellant removed the firearm from his pants and placed it in his girlfriend’s bag; second, he fled the scene leaving the firearm behind. Despite the appellant’s testimony that had the police left he would have taken the firearm with him, the court held that his actions in fact constituted abandonment [paras 30-42].
Despite finding there had been abandonment the court went on to consider the search. In doing so, the court rejected the argument that R v Mann, 2004 SCC 52, 2004 CarswellMan 303, [2004] SCJ No 49 was limited to a pat down search of the person:
However, there is nothing in Mann confining a search incidental to an investigative detention to only the person detained [para 53].
The court ultimately concluded that the search was a logical extension justified on the basis of the information the police had at the time, citing, in conclusion, the following finding by the trial judge:
[W]here the police see conduct consistent with concealing something in the area of the front passenger seat, have information the person may be carrying a gun and wearing a bullet proof vest, and confirm he is wearing a bullet proof vest, to find that the police had to stop their search once they found he was not carrying a gun on him, flies in the face of concerns for officer safety [para 66].
DG Mack

New & Notable: Return of Disclosure

The legal saga of Basi, Virk and Basi continues; in the most recent installment 2011 BCSC 314, 2011 CarswellBC 564, [2011] BCJ No 420, the Crown brought an application for the return of all disclosure as well as application materials filed by the accused in relation to a previous Stinchcombe application.  In short, the Crown argued that all disclosure is provided with an implied undertaking that the material will only be used in the context of the charges from which it was provided and once those charges are completed the disclosure should be returned. 
Aneal Basi was opposed to the application arguing that there is no implied undertaking [para 7].  Dave Basi and Virk accept the implied undertaking but resist the return of the materials [para 8].
In a thorough decision, AW MacKenzie ACJSC first tackled the issue of whether there was an implied undertaking [paras 11-46].   With respect to that issue, MacKenzie ACJSC first recognized that "an accused who receives disclosure material pursuant to the Crown's Stinchcombe obligations, or to a court order, does so subject to an implied undertaking not to disclose its contents for any purpose other than making full answer and defence in the proceeding" [para 42].  On the basis of this undertaking MacKenzie ACJSC agreed with the Crown that since the proceedings are over the accused are not permitted to make any further use of the materials [para 45].
Having found that such an undertaking exists, MacKenzie J considered the impact from the use of these materials on the Stinchcombe application [para 47-64].  In doing so, she rejected the accused argument that the use of these materials in court, the access to them by the media and the reference to them in previous rulings somehow removes this implied undertaking:
...it is, in my opinion, immaterial that some of the Application Materials, or information contained in them, is accessible to the public from other sources. Indeed, Griffin J.'s comments apply more forcefully in the criminal context given the restrictions on the public examination of criminal files. The public availability of documents produced pursuant to Stinchcombe obligations does not of itself displace the limited purpose for which the documents were produced to the defendants [para 63].
Finally MacKenzie ACJSC considered the return of the disclosed materials [para 64-77].  In doing so she considered the issues at which the implied undertaking is aimed: minimization of the intrusion on privacy generated by compelled production and to prohibit improperly motivated proceedings to gain access to materials [para 72] .  Citing the large volume of material and number of third party interests implicated in the matter, Her Honour held that it was within the jurisdiction of the court and consistent with the implied undertaking to order the return of the materials.
 
DG Mack

Quotable Quotes: Dangerous Driving - Sentence

The accused was charged with two counts of dangerous driving causing bodily harm and one count of dangerous driving causing death. The accused was operating his vehicle on the QEW at 189 km/hr as he approached another vehicle from behind. The accused struck the vehicle violently from behind at approximately 178 km/hr; one of the occupants was killed, the other seriously injured. The passenger in the accused's vehicle was also seriously injured.

The accused pleaded guilty and was sentenced to 3 years in the penitentiary; he also received an 8 year driving prohibition. In imposing sentence, Nadel J commented on sentencing for dangerous driving and offered the following thoughts on the speed at which the accused was driving:
Sentences have tended to increase in severity for dangerous driving causing death.
Considering the speed at which Mr. Fitt was travelling it is not a misuse of language, in my view, to describe Gordon Fitt's action that night as an act of racing. While it is true that he was not competing in a race against another car on the roadway, he was racing his car down the highway no less than a racing car driver might do when practicing on a track empty of any cars other than his own [paras 35 and 44].
DG Mack

Current & Curious: Guilty Pleas

This recent decision from the Ontario Court of Appeal has a few interesting aspects to it, including some discussion about competence of counsel. However, arguably the most interesting and curious aspect of it relates to the apparent guilty plea.

On the first date of trial the appellant and trial counsel met. Latter accounts of this meeting diverge signifcantly about what took place. Counsel indicated that the appellant provided written directions to accept the Crown's allegation - plead not guilty but not dispute the allegation. The appellant denied he ever provided those directions.
What did occur, however, was that the appellant appeared in court, plead not guilty, the Crown read in the allegations, trial counsel indicated that the appellant did not dispute the allegations and the appellant was found guitly.

 

On appeal the conviction was struck and a new trial was ordered.  The Court of Appeal held that what transpired constituted a miscarriage of justice as there was a plea of not guilty and no evidentiary proof was established, as required, by the Crown:

This case proceeded on the basis of a plea of not guilty, a plea by which the appellant denied having committed the offence charged and required the prosecutor to prove the essential elements of that offence by relevant, material and admissible evidence beyond a reasonable doubt.

After the plea of not guilty, the prosecutor adduced no evidence. No viva voce testimony. No real evidence. As a surrogate for evidence, the prosecutor read the allegations made against the appellant. It is fundamental that prosecutorial allegations are not evidence. Nor did they become admissions under s. 655 of the Criminal Code by the failure of the appellant's trial counsel to make submissions [paras 55-56].

DG Mack