COURT OF APPEAL FOR ONTARIO
Doherty, Feldman and Gillese JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Justin Ranger and Christopher Fijalkowski
Appellants
James Foord, for the appellant, Ranger
Stuart Konyer, for the appellant, Fijalkowski
Deborah Calderwood, for the respondent
Heard and orally released: November 2, 2010
On appeal from the convictions entered by Justice T. Ray of the Superior Court of Justice on October 21, 2008 and the sentence entered on November 27, 2008.
ENDORSEMENT
1The appellants were charged with a number of serious offences arising out of a home invasion motivated by the mistaken belief that the home owners were operating a marijuana “grow op” and had a great deal of cash in the home. The appellant, Ranger, appeals conviction only. The appellant, Fijalkowski, appeals conviction and sentence.
2The Crown’s case rested in large measure on K.G.B. statements given by two persons, who had participated in the home invasion, pled guilty and been sentenced prior to this trial. Both witnesses recanted their K.G.B. statements at trial, however, the statements were admitted on consent under the principled exception to the hearsay rule. Both witnesses were thoroughly disreputable and the trial judge, quite properly, gave himself a Vetrovec warning. The appellants did not testify.
The Arguments
3The appellants argue that the verdicts are unreasonable. They contend that given the obvious and numerous problems with the credibility of the two K.G.B. witnesses, it was unreasonable to accept the contents of the K.G.B. statements as true and to find that the Crown had satisfied the burden of proof based on the contents of those statements. Counsel for the appellants have taken us through inconsistencies between the two K.G.B. statements and inconsistencies between those statements and other independent facts that were proved in evidence.
4Crown counsel responds by accepting that the two K.G.B. witnesses were liars and thoroughly disreputable individuals. She points out, however, the many consistencies between the two K.G.B. statements on important and specific details with respect to the events culminating in the home invasion. She also submits that there is no evidence of any possible collusion between these two witnesses prior to the giving of the K.G.B. statements. Finally, Crown counsel points to consistencies between the K.G.B. statements and other evidence adduced at trial.
5There is merit to the arguments of both the appellant and the Crown. No doubt, similar arguments were made at trial. Our inquiry is, however, to determine whether a reasonable trier of fact, properly instructed, could convict and not to choose the more compelling of the arguments made for and against conviction. In our view, the evidence clears the reasonable verdict standard. We would not give effect to this ground of appeal.
6Counsel for Mr. Ranger also argues that the trial judge misapprehended the evidence in several respects. He took us through a number of examples. In our view, none merit reversal.
7Some of the alleged misapprehensions do not arise out of the trial judge’s review of the evidence at all, but rather address inferences that the trial judge indicated may or may not be available from parts of the evidence. In this part of his reasons, the trial judge was not reviewing the evidence, but was addressing defence arguments concerning inferences that should be drawn from some of the evidence. The trial judge was pointing out other inferences that were available on that evidence.
8Other alleged misapprehensions of the evidence arise out of the trial judge’s reference to parts of the evidence that he ultimately rejected. For example, it would appear that the trial judge misapprehended part of the in-court testimony of one of the K.G.B. witnesses. However, the trial judge totally rejected that testimony for reasons that had nothing to do with any misapprehension of the substance of the testimony.
9Finally, with respect to the other alleged misapprehensions of the evidence, a review of the entirety of the reasons dispels any concerns that the trial judge made any material error in respect of the evidence. For example, while it is arguable that his summary of the evidence concerning Ranger’s cell phone use was somewhat inaccurate, the trial judge had, moments earlier in his reasons, correctly reviewed that evidence in detail.
10We are satisfied that any mistakes that the trial judge made in his review of the evidence were not material to the verdict and do not give cause to question the reliability of the verdict.
11The appellants also argue that the trial judge failed to consider the cumulative effect of parts of the evidence that supported the position of the defence. Counsel contend that the trial judge looked at each of these potentially exculpatory portions of the evidence in isolation and after deciding that each piece of the evidence could not in and of itself raise a reasonable doubt, rejected the defence position with respect to that evidence.
12It is true that the trial judge addressed the parts of the evidence relied on by the defence separately. He did so to properly outline those arguments and thoroughly address them before rejecting the defence position with respect to each. It is clear, however, from an examination of the reasons as a whole that the trial judge applied the proper burden of proof and applied it to the totality of the evidence. This ground of appeal cannot succeed.
13The appellants also submit that the trial judge erred in taking judicial notice that certain cell phones were being operated in various geographical locations at different times. The Crown adduced business records on consent that detailed the operation of various cell phones that were owned by the appellants and one of the accomplices. The records also showed the cell phone tower to which the signal from a particular phone was transmitted in respect of each call.
14The trial judge concluded that without expert evidence, he could take judicial notice of the approximate location of a cell phone at the time a particular call was made based on the cell phone tower that received the signal. Similarly, he could plot the directional movement of a cell phone over a particular time period by reference to the location of the different cell phone towers that received signals from that cell phone during that time period.
15We do not accept that the trial judge erred in ruling that he could take judicial notice of the facts outlined above without hearing expert evidence. The trial judge used the cell phone evidence for very limited purposes. First, he used the evidence to show association among the parties. This use is not challenged on appeal. Second, by taking judicial notice of the facts set out above, the trial judge used the evidence to show the approximate geographical location of the cell phones in relation to the cell phone tower that received the transmission. He did not take judicial notice that the cell phone was in any precise location, but rather that it could properly be placed in a general location, e.g. in downtown Ottawa as opposed to in the countryside west of Ottawa. The trial judge’s further inference with respect to the movement of the cell phones over a given period of time followed from his determination that judicial notice could be taken of the general location of the cell phone based on the cell phone tower that received a particular transmission.
16We note that the appellants concede that it is now notorious that cell phone users engaged in a cell phone call and travelling from point A to point B will find their cell phone signal passes from one cell phone tower to another at different locations along the route from point A to point B. We agree with and accept that concession. Given that concession, we do not think it can be argued that the trial judge erred in taking judicial notice that a particular cell phone was in a general location based on the tower that received the signal and that the path along which the cell phone was moving could be determined by reference to the cell phone towers that received the signal transmission in respect of particular calls.
17In holding that the trial judge made no error by ruling that he did not require expert evidence on this issue and that he could take judicial notice, we stress that the Crown was seeking to use the cell phone evidence only to show the approximate location of the users and movement of the users in a certain direction between locations. In another case, the Crown may seek to rely on this kind of evidence for more specific or precise inferences. The defence may also satisfy the court that more specific or detailed inferences are relevant to the issues raised by the cell phone evidence. In those cases, the trial judge will require the Crown to lead the expert evidence necessary to address the more specific inferences that the Crown or the defence argue can or cannot be drawn from the evidence. On the specific facts of this case, the trial judge correctly determined that judicial notice could be taken of the general propositions outlined above.
18For the reasons set out above, the appeals from conviction are dismissed.
The Sentence Appeal
19The appellant, Mr. Fijalkowski, appeals his sentence of 10 years. Mr. Ranger received a sentence of 9 years after trial while Messrs. Barkley and Trepanier received 7 years and Mr. Crosby received 4 years following their guilty pleas. They also received credit for pre-trial custody. We think the trial judge erred in law by imposing a sentence on Mr. Fijalkowski that was higher than the sentence imposed on Mr. Ranger.
20First, the trial judge failed to take into account the significant disparity between both the length and the seriousness of the adult criminal records of Mr. Fijalkowski and Mr. Ranger. Second, although the trial judge adverted to the fact that Mr. Fijalkowski was 20 years old, he did not address the significance or effect on sentence of the fact that he is a man four years younger than Mr. Ranger and of the age of only 20 years. Third, the trial judge gave undue effect to his view that the appellant was not a good candidate for long term rehabilitation based only on one transgression in leaving Harvest House while on release and in the face of an apparently positive report from that institution.
21Finally, in his reasons for judgment, the trial judge concluded that on the evidence, he could not make findings of the respective roles of Mr. Fijalkowski and Mr. Ranger in the home invasion. Given that finding, the trial judge could not impose a higher sentence on Mr. Fijalkowski based on any greater role he may have played.
22In our view, an appropriate sentence for Mr. Fijalkowski that would adequately reflect the above considerations and the parity principle is 8 years. The appeal against sentence is, therefore, allowed and the sentence reduced to 8 years minus credit for pre-sentence custody.
“Doherty J.A.”
“K. Feldman J.A.”
“E.E. Gillese J.A.”
