COURT OF APPEAL FOR ONTARIO
Laskin, Moldaver and LaForme JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Anthony Hamilton, Lennox Schloss, Michael Reid and Everald Davis
Appellants
James Lockyer, Brian Snell and Zachary Kerbel, for the appellant Anthony Hamilton
Gregory Lafontaine and Vincenzo Rondinelli, for the appellant Lennox Schloss
Timothy E. Breen and Diana M. Lumba, for the appellant Michael Reid
Joseph Di Luca, for the appellant Everald Davis
Michal Fairburn and Deborah Calderwood, for the respondent
Heard: April 12, 13, 14 and October 21 and 22, 2010
On appeal from the convictions entered by Justice Eugene G. Ewaschuk of the Superior Court of Justice, sitting with a jury, dated January 26, 2005.
Introduction
1On July 24, 2001 at approximately 9:17 p.m., a call was placed to 911 reporting a shooting at 7 Flemington Road, a residential building in the City of Toronto. According to eyewitnesses, three gunmen leapt over the railing to the east of the entrance to the building and opened fire on a crowd of people standing outside the building. Paul Watson and Michael Lewis were shot multiple times and pronounced dead at the scene. Wayne Medder was shot in the leg as he ran trying to escape the gunfire. The killers fled in a van that was never recovered by police.
2In the spring of 2002, the four appellants, Anthony Hamilton, Lennox Schloss, Michael Reid and Everald Davis, were each charged with attempted murder and two counts of first degree murder.
3The trial of all four appellants began on September 13, 2004 before Ewaschuk J. and a jury, following several months of pre-trial rulings by the trial judge. The sole issue at trial was the identity of the killers and the driver of the getaway vehicle. On January 26, 2005, after nine days of deliberation, the appellants were convicted on all counts. On January 28, 2005, they were sentenced to life imprisonment with 25 years of parole ineligibility.
4Each appellant appeals his convictions, raising multiple grounds of appeal. In addition, some six months after the appeals were argued, the court reconvened to hear an application by the appellant Hamilton to introduce fresh evidence.
5We decline to give effect to any of the grounds of appeal and we dismiss the application to introduce fresh evidence. The trial judge, in our view, conducted this very difficult trial fairly, firmly and even-handedly. Before explaining the result, we briefly describe the evidence adduced at trial as it relates to the Crown’s theory of the case and the defence of the four appellants.
Summary of the Evidence at Trial
1. Theory of the Crown
6The Crown’s theory of the case was that the fatal shootings of Paul Watson and Michael Lewis and the wounding of Wayne Medder marked the third incidence of related violence over a 48-hour period between July 22 and 24, 2001. According to the Crown, the victim Paul Watson was targeted in revenge for the shooting death of Omar Christian (a.k.a. “Face”), which occurred less than 24 hours before Watson was killed. Christian was fatally shot on July 24, 2001 at approximately 2 a.m. outside the Base nightclub in Toronto. A day before his death, Christian had shot at and grazed Sydney McKoy (a.k.a. “Plum”) following a boat cruise in the Toronto Harbour. McKoy was a member of a gang called the Eglinton Boys.
7At about the time Christian was shot outside the Base nightclub, witnesses observed a Silver PT Cruiser in the parking lot. Watson drove a Silver PT Cruiser. The Crown’s theory was that the appellants believed that members of the Eglinton Boys had killed Christian in retaliation for the shot he fired at McKoy after the boat cruise, and that Watson was the getaway driver in Christian’s shooting. The appellants, who were criminal associates and friends of Christian, allegedly shot Watson in retribution for Christian’s death. According to the Crown, the other shooting victims, Lewis and Medder, were simply in the wrong place at the wrong time.
8The Crown’s theory of liability was that the appellant Hamilton was the getaway driver of the green van that was observed leaving the scene of the killings and the remaining appellants were the gunmen.
9Central to the Crown’s case against the four appellants was evidence obtained through cell phone records that was said to reveal the appellants’ movements on the day of the shootings. The Crown relied on the cell phone evidence as a compelling item of circumstantial evidence demonstrating that the appellants Hamilton, Schloss and Davis were near 7 Flemington Road, the scene of the murders, minutes before and after the shootings.[1]
10Also integral to the Crown’s case were intercepted telephone conversations involving the appellants that occurred after the shootings. The wiretap evidence included a conversation in which the appellant Hamilton (a.k.a. “Kaddhaffi”) took credit for the killing of Watson and Lewis. There was also an intercept of Hamilton berating his spouse for failing to give him an alibi when she was questioned by homicide police about his whereabouts on the day of the shooting. Other intercepted calls indicated that the appellants, Schloss (a.k.a. “Buckers”), Everald Davis (a.k.a “Ninja”), and Hamilton were conspiring to murder the appellant, Michael Reid (a.k.a. “Dawg” or “Richie Rich”) because he was telling others about his role in “serious things”, which the Crown posited must have been the murders of Watson and Lewis. In relation to Schloss, the Crown also relied on an intercept of a song he sung to a female acquaintance in December 2001, which contained the lyric: “From the day I see my friend die, That’s the day I let my gun cry.”
11The Crown’s case against two of the appellants, Reid and Davis, was also based in part on the evidence of their associate, Clarence Coward. Coward, while in police custody on unrelated charges, gave two statements to the police indicating that on the afternoon of July 24, 2001 (the day Watson and Lewis were killed), he helped Reid and Davis look for McKoy in an attempt to avenge Christian’s death. These statements were made under oath and videotaped in accordance with the requirements established by the Supreme Court of Canada in R. v. K.G.B. (1993), 1993 116 (SCC), 79 C.C.C. (3d) 257 (“the K.G.B. statements”). In a third statement Coward gave to police, which was audiotaped, and in his testimony at the preliminary inquiry, he recanted the information given in his K.G.B. statements.
12By the time of trial, Coward had absconded and was not available to testify. The trial judge admitted his two K.G.B. statements as well as the recantation evidence in the form of the police statement and Coward’s testimony at the preliminary inquiry. The trial judge’s ruling on Coward’s statements and his evidence gives rise to three grounds of appeal by the appellants Reid and Davis. The details of Coward’s evidence as well as the grounds of appeal in relation to it are discussed below.
13The Crown’s case against Reid and Davis also included forensic evidence, which when taken in conjunction with Coward’s K.G.B. statements, linked Reid and Davis to two of the guns used in the murders.
2. Defence Positions at Trial
14None of the appellants testified. Each took the position that he had nothing to do with the shooting of Watson, Lewis and Medder.
(i) Hamilton’s Position
15Hamilton pointed to his lack of motive to kill Watson and Lewis. He also raised the defence of alibi.
16His counsel relied on a videotaped statement that Hamilton gave to the police following his arrest for the murders on May 2, 2002, in which Hamilton denied being involved in the killing of Watson and Lewis and claimed he had no motive to kill either one of them because he knew that McKoy was responsible for the killing of his friend Christian. In this statement, Hamilton told the police that at the time of the murders, he was riding in a van on Eglinton Avenue West, near Oakwood Avenue, with Patrick Webb (a.k.a. “Ginga”), and urged investigators to check his cell phone records to confirm this alibi. Webb did not testify at the trial.
17Counsel for Hamilton also pointed to his client’s cell phone records with Telus Mobility, which indicated that at 9:18:45 p.m., Hamilton’s cell phone registered at a cell phone tower near the intersection of Eglinton Avenue West and Marlee Avenue, several blocks from where he told police he had been at the time of the murders. Counsel claimed that this evidence confirmed Hamilton’s story to the police about his whereabouts and also proved he was not near the murder scene shortly after the shootings, which were first reported in a phone call placed to 911 by the deceased Lewis’ brother at 9:17:55 p.m. The cell tower where Hamilton’s phone registered 50 seconds after the 911 call was approximately 3.6 kilometres from the murder scene and there were four other Telus cell towers closer to the crime scene. The evidence at trial was that a phone call generally registers at the closest cell tower, with exceptions that will be discussed below.
18In addition, counsel contended that Hamilton’s cell phone records indicated that he and Schloss were not together at the time of the shootings because Hamilton received incoming calls from Schloss several minutes before and several minutes after the 911 call that was made at 9:17:55 p.m.[2]
(ii) Schloss’ Position
19Counsel for Schloss emphasized the absence of any forensic or eyewitness evidence connecting Schloss to the murder scene. He also relied on the cell phone evidence indicating that Schloss and Hamilton spoke by telephone both immediately before and after the murders, which suggested, contrary to the Crown’s theory, that they were not together at the time of the murders. Counsel contended that the cell phone location evidence indicating that Schloss’ phone registered at a cell tower close to the murder scene both minutes before and minutes after the shooting could not provide accurate and reliable evidence of location and, even if accurate, it did not prove his involvement in the murders.
(iii) Reid’s Position
20Reid pointed out that there was no evidence in the form of cell phone records linking him to the scene of the murder at the times in question. Counsel also pointed out that Reid was significantly shorter and had a different complexion than the persons described by eyewitnesses as the shooters, and submitted that this identification evidence exonerated him.
21Reid took the position that Coward was an unsavoury witness who falsely implicated him in order to extract immunity in relation to Coward’s involvement with a Glock pistol that was used as one of the murder weapons. Counsel argued that Coward implicated Reid because he knew Reid had been arrested in connection with the Watson and Lewis murders and that Coward would therefore stand to benefit by providing information against Reid. Counsel further argued that Reid’s alleged involvement on July 24, 2001 with an incident at a jewellery store on Eglinton Avenue, as described by Coward, was inconsistent with Reid’s cell phone records.
(iv) Davis’ Position
22The trial judge permitted Davis to raise Patrick Webb as an alternate suspect. Webb was a criminal associate and friend of both Hamilton and Schloss. As noted, Hamilton claimed to have been with Webb at the time of the shootings.
23In support of his alternate suspect theory, counsel for Davis pointed out to the jury that Webb’s cell phone records indicated that his phone registered at a cell phone tower located several minutes from the murder scene at 7 Flemington at around the time of the murders. In addition, in Coward’s recantation statement and in his preliminary inquiry testimony, he claimed to have supplied Webb with the gun that was forensically linked to the murders. Davis took the position that the police confused him with Webb by virtue of the similarity of his nickname “Ninja” with Webb’s nickname “Ginga”.
24Davis also advanced an alibi defence based on evidence that his cell phone registered at a cell tower located near Yorkdale Mall at approximately 9:20:09 p.m. on the night in question, and the evidence of an eyewitness who suggested that the gunmen remained at the crime scene for five to eight minutes after the shooting.
Grounds of Appeal and the Fresh Evidence Application
25In total, the appellants raise ten grounds of appeal, both in common and individually.[3] All four appellants raise the following two grounds of appeal:
The trial judge’s numerous interventions during the trial compromised trial fairness.
The trial judge’s comments while summarizing the evidence in his charge to the jury were unfair and prejudicial.
The appellants Davis and Reid raise three grounds of appeal in relation to the evidence of Clarence Coward:
The trial judge erred in admitting the K.G.B. statements of Clarence Coward.
The trial judge erred in ruling that Coward’s preliminary inquiry evidence was admissible at the instance of the prosecution.
The trial judge failed to provide the jury with a Vetrovec caution in assessing Coward’s K.G.B. statements.
The appellant Reid raises the following ground of appeal:
- The trial judge erred in refusing Reid’s application for severance.
The appellant Schloss raises the following grounds of appeal:
The trial judge erred in admitting the intercept of a song Schloss sung over the phone to a woman.
The trial judge failed to leave a critical factual issue with the jury – whether three or four men were involved in the crimes.
The appellants Schloss, Davis and Reid raise the following ground of appeal in relation to the cell phone evidence:
- The trial judge erred in admitting the evidence of three Crown witnesses related to the location of cell phones associated with the appellants without first conducting a voir dire on its admissibility.
The appellant Hamilton raises the following two grounds of appeal in relation to the cell phone evidence:
The trial judge misdirected the jury in his instructions relating to exceptions to the general rule that a cell phone ordinarily registers at the nearest cell phone tower.
The trial judge misdirected the jury on the lack of synchronization between the Telus clock and the 911 clock.
26In addition to these ten grounds of appeal, after the appeal was argued, Hamilton pursued an application to adduce fresh evidence, which he contends proves that the time recorded on the first 911 call at 9:17:55 p.m. and the time of the incoming call on his phone received at the Telus cell tower at Eglinton Avenue West and Marlee Avenue at 9:18:45 p.m. were both accurate times. According to Hamilton, this evidence clearly establishes that he was not at the scene of the crime when the shootings occurred and refutes evidence the Crown relied on at trial to the effect that there may be time discrepancies between the clocks used by the 911 system and the cell phone carriers of as much as or more than three minutes.
27We now explain why we dismiss each of the grounds of appeal and the application to introduce fresh evidence.
I. Interventions by the Trial Judge
28The appellants collectively assert that interventions by the trial judge compromised the fairness of their trial. They claim that these interventions occurred during the cross-examination of various Crown witnesses, as well as at other times throughout the trial. They argue that, together, the interventions by the trial judge created an appearance of unfairness or bias.
The Applicable Principles
29Appellate courts are reluctant to interfere on the basis that a trial judge improperly intervened during a trial. There is a strong presumption that a trial judge has not unduly intervened in a trial, and that “there are many proper reasons why a trial judge may intervene by making comments, giving directions or asking questions during the course of a trial”: Chippewas of Mnjikaning First Nation v. Chiefs of Ontario, 2010 ONCA 47, at para. 231.
30When evaluating interventions by a trial judge, the fundamental question is whether the interventions led to an unfair trial: R v. Valley (1986), 1986 4609 (ON CA), 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), 2009 ONCA 151, 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.
31In Stucky, at para. 71, this court repeated three situations, referred to in Valley at pp. 231-32, where interventions by the trial judge have been found to lead to an unfair trial and have resulted in quashing criminal convictions. These situations are:
Questioning an accused or a defence witness to such an extent or in a manner which conveys the impression that the trial judge has placed the authority of his or her office on the side of the prosecution and conveys the impression that the trial judge disbelieves the accused or the witness;
Interventions that have effectively made it impossible for defence counsel to perform his or her duty in advancing the defence; and
Interventions that effectively preclude the accused from telling his or her story in his or her own way.
32While these three situations appear to go some way toward categorizing different types of interventions, the analysis is nonetheless a contextual one. That is, interventions should not be judged in isolation but in the broader context of the entire trial: “[T]he record must be assessed in its totality and the interventions complained of in a given case must be evaluated cumulatively, not as isolated occurrences”: Stucky, at para. 72.
33Simply put, the rules limiting the ways in which a trial judge can intervene in proceedings are based on the oft-repeated adage that “justice should not only be done, but should manifestly and undoubtedly be seen to be done” (internal citations omitted): Stucky, at para. 61.
34Particularized occurrences of the trial judge’s interventions were set out in the materials and referred to in the arguments of the appellants Reid and Hamilton. The appellant Davis relies on those occurrences and adopts the arguments made by Reid and Hamilton, while the appellant Schloss adopts those of Reid.
Reid’s Objections
35Reid points to numerous interventions that he contends interfered with his ability to challenge the prosecution’s case and compromised the necessary appearance of judicial impartiality. The first of these challenged interventions is in connection with Clarence Coward being shown a photo array that included a picture of Reid. According to Reid, the trial judge interfered with his counsel’s cross-examination of one of the investigating officers by suggesting answers to the officer in anticipation of counsel’s attempt to establish that another officer had shown Coward the photo array off-camera in order to get him to implicate Reid.
36Reid also argues that the trial judge intervened at several points in a way that reinforced the credibility of Coward’s K.G.B. statements. In particular, the trial judge commented during the examination-in-chief of one of the investigating officers that Coward had made these statements because he was doing his “civic duty”.
37Next, Reid argues that the trial judge erred in censuring defence counsel with the jury present when his counsel attempted to lead evidence that the Crown witness, Deetha (Angie) Simms, had failed to identify Reid from an incident at a jewellery store where she worked.[4] Reid also complains that the trial judge minimized Andrew Simms’ inability to describe Sydney McKoy (a.k.a. “Plum”) and the three men involved in the jewellery store incident.
38Finally, and briefly, Reid points to several other interventions by the trial judge during the testimony of various witnesses that he alleges were problematic:
During the testimony of Satinder Dhillan, owner of a rental car company, the trial judge pointed out that having a non-renter drive a rental van would create issues with insurance;
During the cross-examination of Garfield Brahan, a witness at the appellants’ hang-out at 1620-22 Lawrence Avenue West, the trial judge intervened to say that the witness did not need to be 100% sure of certain facts, allegedly displayed impatience with defence counsel’s cross-examination of the witness on his criminal record, and also undermined counsel’s suggestion that Reid spoke with a thick Jamaican accent;
During the testimony of Janelle King, a friend of Reid, the trial judge allegedly minimized her evidence about his accent;
During the cross-examination of Locksley Blades, a security guard at East Detention Centre, the trial judge allegedly minimized his comment that inmates will fight over dessert; and,
During the cross-examination of Michael Rickard, a Bell Canada employee, the trial judge allegedly minimized cell phone evidence by noting that “[w]e can’t be sure where he was in between those two calls.”
Hamilton’s Objections
39Hamilton, in a single paragraph in his factum, joins in the submissions made by Reid for this ground of appeal, and also refers to several portions of the trial record that he claims demonstrate other objectionable interventions by the trial judge.
40Hamilton refers to three interventions related to the Crown witness, Nicole Flemming, the girlfriend of Paul Watson and acquaintance of Omar Christian. The first two interventions occurred during a voir dire into the admissibility of a statement made by Christian to Ms. Flemming. The voir dire was held just prior to the end of Ms. Flemming’s examination-in-chief. In the first example, the trial judge ruled it was unnecessary to have Ms. Flemming take the time to read two preceding pages of the statement for purposes of illustrating that she did not refer to a fact in issue, given that she did refer to this fact later in the statement. In the second example, the trial judge insisted that counsel not misstate Ms. Flemming’s previous evidence. Similarly, in the third intervention, which occurred during the cross-examination of Ms. Flemming while the jury was present, the trial judge again insisted that counsel not misstate her previous evidence.
41Hamilton next refers to interjections by the trial judge while the Crown witness, Paul Dylan, was being cross-examined on his observations regarding the alleged getaway van. The trial judge intervened to ensure that counsel did not misstate in his questions evidence that the witness had given in chief.
42Hamilton also refers to two interjections during Bharat Punwassie’s evidence related to the timing of the departure of the alleged getaway van and his physical description of the occupants of the van. In the first example, the trial judge was seeking clarification of the timing related to the departure of the vehicle after the witness gave contradictory evidence on the point. In the second example, the trial judge commented on what Mr. Punwassie had meant when he said the men he saw get into the getaway van were of what he believed to be Somalian or Ethiopian descent. The trial judge did so by repeating the witness’ earlier answers on this point.
Analysis
43It should be emphasized that interventions by trial judges are not about numbers, but rather about their effect and impact on the trial. As we stated at the outset, the ultimate question is whether the appellants received a fair trial from the perspective of a reasonable observer present throughout the trial. This assessment is, by necessity, a contextual one.
44This was a complex and difficult homicide case. The Crown’s case was strong, but far from simple. The jury was compelled to examine a culture of violence that fosters fear.
45Leading up to and throughout the proceedings before the jury, the trial judge was required to make numerous evidentiary rulings and manage a complicated set of players. The following list helps to illustrate the demanding nature of the trial by showing the sheer magnitude of players, steps and decisions involved:
Between March and August 2004, the four accused brought many pre-trial motions which required the trial judge to make numerous rulings.
The accused were placed in the charge of the jury in mid-September. The jury began its deliberations on January 18, 2005 and verdicts were returned on January 26, 2005, a little over four months from the time the jury was empanelled.
During the trial about 100 witnesses testified before the jury, over 60 mid-trial rulings were made, and over 20 mid-trial instructions given.
46Indeed, managing this trial was a very difficult task and a trial judge with expertise in criminal matters was essential to running a smooth trial.
47An examination of whether a trial judge has unduly intervened in a trial begins with the recognition that there are many proper reasons why a trial judge may intervene through comments, giving directions or asking questions during the course of a trial. A trial judge has an inherent authority to control the court's process and, in exercising that authority, a trial judge will often be required to intervene in the proceedings: R. v. Felderhof (2003), 2003 37346 (ON CA), 68 O.R. (3d) 481 (C.A.), at para. 40.
48A trial judge may properly intervene to focus the evidence on the matters in issue, to clarify evidence, to avoid irrelevant or repetitive evidence, to dispense with proof of obvious or agreed matters, and to ensure that the way a witness is answering or not answering questions does not unduly hamper the progress of the trial.
49At 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.
50Aside from the trial judge’s comment about “civic duty” in relation to Clarence Coward, the appellants have not rebutted the strong presumption that the trial judge conducted himself fairly and impartially. The interventions by the trial judge, when evaluated cumulatively and after an assessment of the entire record, cannot be said to have resulted in an unfair trial for any of the appellants.
51Although it is true that the trial judge intervened on multiple occasions, he did so in the context of a case that was very large, long, and complex. On the whole, when he intervened – and he did in both the case for the Crown and defence – he did so for good reasons. On our review, his interventions were for proper purposes such as clarification, avoiding irrelevant and repetitive evidence, and generally to move the trial expeditiously to a conclusion. We do not accept the argument that his interventions impeded counsel’s ability to probe the Crown’s case, or reflect the trial judge’s attempts to provide the witnesses with answers favourable to the Crown’s case. Rather, the trial judge had a noteworthy grasp of the evidence and demanded accuracy and fairness on the part of all counsel.
52After examining the appellants’ complaints, any concern for unfairness or perceived unfairness is misplaced. The trial judge determined when it was appropriate to interject to move along the process. His discretion should be given deference. Indeed, this case required an experienced judge with a firm hand.
53The “civic duty” comment, nevertheless, is problematic. It arose during the examination-in-chief of Det. Carter in a discussion of the police efforts to protect Coward’s identity as a witness in this investigation. The trial judge suggested to Det. Carter that what he meant by the phrase, “the cat was out of the bag”, was “that Mr. Coward had done his civic duty and cooperated with you”.
54It is of some significance that this comment was not made in the context of a discussion of Coward’s credibility. The trial judge was giving his own interpretation of the meaning of the witness’ comment that “the cat was out of the bag.” Even so, the comment appears to somewhat facetiously attribute certain civic virtues to Coward. The comment is not, however, fatal.
55Importantly, shortly after the comment was made, the jury was excused and counsel brought a mistrial application based on the prejudicial effect of this comment. The trial judge dismissed the application. When the jury returned, the trial judge gave them a clear instruction to disregard the opinion of counsel or himself in assessing a witness’ credibility. He emphasized:
[P]lease keep in mind that it is your sworn duty as jurors to determine the credibility and reliability of a particular witness when assessed in the context of all the evidence. The opinion of Crown counsel, defence counsel, a witness, or even myself, as to a witness’s veracity are irrelevant to your determinations. You determine the truth of the case as judged in the context of all the evidence tendered at this trial. It is your responsibility, not that of other witnesses, counsel or even myself, to determine whether a witness is telling the truth on a particular matter.
56We are satisfied that this instruction would have eliminated any prejudice that may have been caused by the trial judge’s comment.
57Again, in a difficult case, where trial management skills needed to be at their most acute level, the trial judge did extremely well. Witnesses were treated fairly, as were all counsel and all accused, and the administration of justice was well-served. We therefore dismiss this ground of appeal.
II. The Trial Judge’s Summary of the Evidence
58In addition to their complaints about the trial judge’s interventions, the appellants also complain that in his charge to the jury, the trial judge used inflammatory and prejudicial language, which compromised their right to a fair trial.
59For example, the appellant Hamilton complains that the trial judge made a number of comments emphasizing the speed with which the killers left the crime scene, even though there was conflicting evidence on this point, some of which suggested that the shooters walked calmly away from the scene and drove away at a normal pace. The trial judge’s commentary on the speed of the killers is said by Hamilton to have detracted from his alibi defence. In advancing this objection, Hamilton cites this passage from the trial judge’s charge to the jury:
Please also keep in mind that the killers acted quickly and with military precision in executing their … well-formulated plan, to kill Paul Watson.
60Hamilton also points to several passages from the trial judge’s summary of the Crown’s case, including:
Common sense tells you that the brazen criminals had to make a rapid getaway or risk being arrested by the police.
It defies common sense that the gunmen would wait for three to five to eight minutes before they fled the murder scene. No, theirs was a rapid escape, a rapid flight. It was lightning quick, not done in slow motion.
61We do not accept that these passages were unfair or prejudicial. The first impugned comment by the trial judge in his charge simply refers to the speed with which the shootings occurred, something that was not in dispute. As for the trial judge’s recitation of the Crown’s position that the shooters would have left the scene quickly, three observations are in order. First, the trial judge was merely stating the Crown’s overall position on this point. Second, trial counsel for Hamilton in his closing argument accepted that common sense indicated that the shooters would have moved with speed after the shooting, noting that “it’s hard to believe that it would have taken over three minutes for these gunmen to get into the van and drive away.” And finally, the trial judge reminded the jury of the conflicting evidence related to the speed with which the shooters left the scene. Simply put, there was no unfairness in how this issue was left with the jury.
62The appellants also submit that the trial judge advanced a theory of association between the four of them that was not advanced by the Crown, namely, that Schloss seemed to be the lynch pin between the older and younger members of the group. Again, a review of the charge and the Crown’s closing does not bear out this complaint. In the Crown’s closing address, Schloss was described as the leader. The trial judge’s suggestion merely reflected this position.
63In addition, the appellants complain that the trial judge made comments to the jury conveying his personal opinion of the evidence. However, as pointed out by the Crown, each of the examples given by the appellants is taken from the portions of the trial judge’s charge called “The Crown’s Position” and “Crown’s Overview”. The trial judge was simply providing an accurate summary of the Crown’s position. Moreover, the trial judge had explained to the jury on several occasions during the trial and in his charge that they were not bound to follow his opinions on questions of fact or on the weight of the evidence.
64Finally, the appellants complain that the trial judge described the Crown’s case as though it were a statement of fact, while in contrast, he described the defence position as a matter of counsel’s opinion by repeatedly prefacing his comments with the phrase “according to defence counsel”.
65This objection is not borne out by a review of the charge. The trial judge interspersed his summary of the Crown’s case with phrases such as “the Crown submits”, “according to the Crown”, and “the Crown points out”. Although some elements of the Crown’s case were not attributed to Crown counsel’s position, the trial judge used the same approach in describing the defence position. For example, in his summary of the positions of the various accused, he made comments such as:
Anthony Hamilton has a valid alibi.
At those times the two accused [Schloss and Hamilton] could not have been together and the Crown’s theory must necessarily fail.
Once you reject [Coward’s] unreliable evidence, which is not corroborated with respect to the identity of the shooter of Colin Allen’s van, nothing is left of the Crown’s case against Michael Reid.
Thus, Everald Davis has a valid alibi for the charges.
66In short, the trial judge’s summary of the evidence relating to the theories of the Crown and the accused was balanced and fair. We therefore do not give effect to this ground of appeal.
III. Three Grounds of Appeal Related to the Evidence of Clarence Coward
Introduction
67At the time of the murders of Watson and Lewis, Clarence Coward was a friend of Reid and Davis and an acquaintance of Hamilton and Schloss.
68On August 7, 2002, a little more than a year after the murders, Coward provided the police with a K.G.B. statement in which he placed Reid and Davis in possession of two of the handguns used in the murders just hours before the murders occurred. On December 12, 2002, Coward provided the police with a second K.G.B. statement in which he provided further information and also discussed his understanding of what police had said to him off-camera during the August 7 statement.
69Five weeks later, on January 16, 2003, Coward provided the police with a third audio-recorded statement in which he recanted his earlier two K.G.B. statements. This statement was not taken in accordance with the K.G.B. format as it was not made under oath or videotaped.
70In mid-March 2003, Coward testified as a Crown witness at the appellants’ preliminary inquiry and continued to disavow his two K.G.B. statements. The preliminary inquiry judge admitted the K.G.B. statements for their truth over the objection of defence counsel. At the conclusion of the preliminary inquiry, Reid and Davis were committed to stand trial along with their co-accused, Hamilton and Schloss.
71At trial, the Crown sought to call Coward as a witness at the trial of the four accused, but by the time of trial, he was no longer in Canada. Evidence adduced by the Crown established that he had absconded and was probably living somewhere in Jamaica.
72In the light of Coward’s absence, the Crown sought to introduce his two K.G.B. statements for their truth. In argument, Crown counsel advised the trial judge that if Coward’s two K.G.B. statements were admitted for their truth, he would agree that Coward’s third statement (the audio-recorded recantation) and his evidence from the preliminary inquiry should also be admitted for the jury’s consideration. That way, the jury would have a full picture of everything Coward had said when assessing the worth of his K.G.B. statements.
73Defence counsel objected to the admissibility of Coward’s K.G.B. statements for their truth. However, if those statements were to be admitted for their truth, defence counsel wanted the jury to have Coward’s audio-recorded recantation and his evidence from the preliminary inquiry.
74The trial judge ruled that Coward’s two K.G.B. statements, along with his third recantation statement and his testimony from the preliminary inquiry, were admissible for the truth of their contents for the jury to consider.
75Following the trial judge’s ruling, the parties began vetting Coward’s statements and his evidence from the preliminary inquiry for use by the jury. In the course of that exercise, defence counsel had a change of heart about Coward’s testimony from the preliminary inquiry, and now claimed that it should be withheld from the jury and that the jury should only receive his two K.G.B. statements and his audio-recorded recantation.
76Crown counsel objected to that proposal. In his view, the jury should have Coward’s audio-recorded recantation and his evidence from the preliminary inquiry, or neither. The defence could not have it both ways.
77The trial judge agreed with the Crown and offered defence counsel a choice – both or neither. Defence counsel chose both and Coward’s audio-recorded recantation and his evidence from the preliminary inquiry were admitted as evidence the jury could consider for the truth of their contents.
78In pre-charge discussions, defence counsel urged the trial judge to provide the jury with a Vetrovec caution in relation to Coward. The trial judge felt that such a warning was unnecessary. He did advise the jury of the need to carefully assess Coward’s evidence given that he was an admitted perjurer. He did not, however, fully identify why Coward’s evidence should be approached with caution.
Grounds of Appeal Relating to Coward’s Evidence
79Reid and Davis raise the following three grounds of appeal in relation to Coward’s evidence:
The trial judge erred in admitting Coward’s two K.G.B. statements for their truth.
The trial judge erred in including Coward’s preliminary inquiry evidence in the package of evidence presented to the jury.
The trial judge erred in failing to give the jury a Vetrovec warning in relation to Coward’s evidence.
1. Did the trial judge err in admitting Coward’s two K.G.B. statements for their truth?
Background
80On September 10, 2001, Coward was arrested by the York Regional Police on charges arising out of a home invasion that occurred in May 2001. On October 19, 2001, Davis was arrested in respect of the same occurrence. Davis was released on bail; Coward was detained in custody.
81On February 14, 2002, wiretap surveillance conducted by the Toronto Police in connection with the Watson and Lewis murders revealed an arrangement whereby Davis was to pick up a handgun. The police believed that Davis was targeting Reid to kill him. Reid had just been released from custody on unrelated matters. While in custody, Reid had been speaking indiscreetly about matters related to the Watson and Lewis murders and it appeared from the wiretaps that Davis, Hamilton and Schloss had come to view him as a liability.
82The police followed Davis to a location where he had arranged to pick up the handgun. Davis was stopped and a loaded 9 mm Glock handgun was found concealed in the dashboard of his car. He was arrested for various gun-related offences and detained in custody.
83On February 18, 2002, forensic examination of the gun found in Davis’ car revealed that it was one of the guns used in the Watson and Lewis murders. The Toronto Police charged Davis in connection with the murders on April 25, 2002 while Reid was charged on May 8, 2002.
84On June 10, 2002, the Toronto Police learned that the gun seized from Davis’ car was purchased by Coward several weeks before the murders. On June 11, 2002, the Toronto Police forwarded certain intercepted calls involving Coward and Davis to the York Regional Police. Those calls were disclosed to the two counsel who were representing Coward and Davis on the York Region home invasion charges. Davis was overheard in some of the calls making derogatory remarks about Coward. He expressed concern that Coward was planning to arrange a guilty plea and identify Davis as the lone gunman in the home invasion charges. Davis was also overheard to say that he did not care about Coward and that so far as he was concerned, Coward could spend the rest of his life in jail.
85On June 18, 2002, D.C. Nicol of the Toronto Police contacted Catherine Rhinelander, Coward’s counsel on the York Region charges. D.C. Nicol told Ms. Rhinelander that the Toronto Police had information linking Coward to one of the guns used in the Watson and Lewis murders. Although he was not a suspect in those murders, the Toronto Police wanted to speak to Coward on a “no promises/no deals” basis.
86On June 21, 2002, Ms. Rhinelander spoke to D.C. Nicol and told him that Coward would speak to the police in her presence. She advised D.C. Nicol that Coward had concerns about his safety and the safety of his family. She also made it known that Coward wanted consideration on the York Region charges for speaking to the Toronto Police. D.C. Nicol stood firm and told her that there would be no promises or deals.
87In the ensuing weeks, efforts were made to arrange a meeting with Coward. On June 27, 2002, Crown counsel from York Region advised Ms. Rhinelander that Coward would be offered immunity from the use of any statement he might provide to the Toronto Police concerning the gun located in Davis’ car but he would receive no consideration on the York Region charges. Ms. Rhinelander indicated that she would seek instructions from Coward.
88On July 26, 2002, having received no response from Ms. Rhinelander, D.C. Nicol left a message for her indicating that the police would be attempting to speak with Coward in the next several weeks. Once again, Ms. Rhinelander did not respond.
89On August 7, 2002, D/Sgt. Martin and D.C. Nicol travelled to the Newmarket Provincial Court knowing that Coward would be attending there for a bail hearing. At 4:35 p.m., they met Ms. Rhinelander in the corridor outside of the court and told her that they would be attempting to obtain a statement from Coward. Coward would be told that he faced prosecution for his involvement with the handgun found in Davis’ car and he would be asked to account for his whereabouts at the time of the Watson and Lewis murders. Ms. Rhinelander indicated that she wanted to speak to Coward and arrangements were made to have Coward taken to a York Regional police station.
90Coward was transferred to a nearby detachment and at 5:00 p.m., he was placed in an interview room. D/Sgt. Martin then spoke to Ms. Rhinelander, who was in the detachment lobby. Ms. Rhinelander stated that she would not be sitting in on the interview with her client. She was then escorted into the interview room where she met with Coward in private.
The August 7, 2002 Statement
91At 5:51 p.m., D/Sgt. Martin and D.C. Nicol commenced a videotaped interview with Coward. The interview lasted for almost five hours. It was interrupted by two breaks.
92At the outset of the interview, Coward made it known that he was willing to talk about his involvement with the gun used in the Watson and Lewis murders but he preferred to wait until he was out of jail. D/Sgt. Martin advised him of the witness protection program and she outlined some of the benefits and burdens associated with it. Coward described his present situation as a “predicament … [i]t’s like I am signing my death wish”. Asked whether he had already been threatened, Coward referred to the intercepted communications that the Toronto Police had turned over to York Region in which Davis had been speaking about him in very negative terms.
93Before going further with the interview, Coward was told by D/Sgt. Martin that one of the guns used in the murders had been traced back to Coward in Florida and that the American authorities might be pursuing charges against him. As for charges in Canada arising from Coward’s involvement with the gun, D/Sgt. Martin explained that Coward would receive use immunity for any statement he might provide and he would also be given transactional immunity, such that he would be protected from prosecution in Canada for any offences related to the gun. She further told Coward that while he was not a suspect in the Watson and Lewis murders, he was “a person of interest”.
94Coward then indicated that he wanted to call his wife and a break was taken to enable him to do so. During the break, Coward spoke briefly with D.C. Sepkowski off-camera. D.C. Sepkowski was the officer in charge of the York Region investigation and Coward wanted to know what was going to happen on those charges. D.C. Sepkowski told Coward that that was between Coward and the Toronto police and the Toronto police could approach him [Sepkowski] at any time.
95After the break, Coward was advised that the interview was being videotaped and audiotaped. D/Sgt. Martin further informed him that he did not “have to be here”. It was his choice to remain or leave and if he chose to leave, arrangements would be made to have him returned at once to the detention centre. Coward stated that he wanted to stay. He was then placed under oath and cautioned and the formal interview commenced at 6:42 p.m.
96Because of the importance of Coward’s statement of August 7, 2002, particularly as regards Reid, we describe in detail the content of the statement. We also describe the many items of independent evidence that support the statement’s overall veracity and those aspects of it that implicate Reid and Davis in the Watson and Lewis murders.
97In his statement, Coward told the police that about a month before the murders, he was in Miami. He said he travelled there under the name of Clarence Rogers and that his cell phone was registered to that name. Coward’s wife, Caron, confirmed that Coward used the name Clarence Rogers and cell phone records under the name of Clarence Rogers were produced at trial and filed as exhibits.
98While in Florida, Coward received a call from Davis. Davis wanted Coward to buy a gun for him. Cell phone records and car rental agreements confirm Coward’s account of being in Florida and speaking to Davis. Coward was in Florida between June 29 and July 14, 2001. During that timeframe, Coward had repeated phone contact with Davis and Reid. He had no phone contact with Patrick “Ginga” Webb, the man whom Davis would later cast as a third party suspect and for whom Coward in his subsequent recantations claimed he had purchased the gun.
99Coward purchased two 9 mm hand guns in Florida and had them smuggled into Canada. He purchased the 9 mm Glock, which was found by the police in the dashboard of Davis’ car, from a man named “Dean”. Coward’s cousin had introduced him to Dean and Dean rented cars for Coward when he was in Florida. Records from Dollar Rent-A-Car in Fort Lauderdale, Florida, show “Clarence Rogers” named as an additional driver in a car rental agreement dated July 13 between Dollar and Dean Thomas. Danae Dalling, a woman from Florida who was called by the Crown as a witness, testified that she purchased two guns from A.A. Lock & Gun in Fort Lauderdale, Florida, on April 16, 2001. According to Dalling, she gave the guns to her boyfriend, Dean Thomas, to sell to a “friend of a friend” who wanted to purchase them. The serial number of the 9 mm Glock found in Davis’ car matched the serial number of the Glock sold by A.A. Lock & Gun to Dalling.
100Upon Coward’s return to Canada on July 18, he called Davis and told him to come by and pick up the gun. Davis was shown the two guns that Coward purchased while in Florida and he selected the Glock. Telephone records confirm that Coward called Davis on July 18. Telephone records also show that between July 14 and July 18, on his return trip from Florida, Coward had four contacts with Davis, three with Reid and none with Webb.
101In his statement, Coward told the police where Davis secreted the gun in his car. When Davis was arrested on February 14, 2002, the Glock was found in the precise location indicated by Coward. Intercepted calls from Davis established that the Glock found in the dashboard belonged to Davis.
102Before taking a second break in the interview, D/Sgt. Martin asked Coward if he knew anything about a man named Colin Allen (a.k.a. “Roach”). Roach had been shot at on the day of the Watson and Lewis murders. Coward paused and then stated that he had heard about it.
103During the break, after Coward made a phone call to his wife, he was escorted by D.C. Nicol to an investigation room. As D.C. Nicol was about to shut the door, Coward told him that in the photographs that D/Sgt. Martin had shown him, he now believed that he recognized one of the guys as “Richie Rich” (Reid’s nickname), a friend of “Ninja’s” (Davis’ nickname). D.C. Nicol told Coward that they would discuss it on tape when the interview resumed. He then advised D/Sgt. Martin of the conversation.
104D/Sgt. Martin proceeded to the room where Coward was waiting. Coward was crying when she entered the room. He told her he was afraid of Davis. He stated that she “wasn’t asking him the right questions.” He said he knew everything and that he was with Reid and Davis in a van on Falstaff Avenue when Reid shot at Roach.
105Shortly after 9:00 p.m., Coward was returned to the interview room. He told D/Sgt. Martin that he knew Reid as “Richie Rich”. He stated that on the day of the Watson and Lewis murders, Reid and Davis picked him up shortly after noon hour. Reid was driving a light blue Dodge Caravan that he had rented. They spoke about Face’s (Christian’s) death and the rumours going around that the Eglinton Boys were responsible.
106Coward stated that he, Davis and Reid drove to Eglinton and parked in a back alley. Davis had the Glock and he provided Coward with another gun. The three men then entered a small jewellery store, drew their guns, and Reid asked for someone whose name Coward could not recall. Coward said he knew the person in the store and told Davis not to “trouble them.”
107Angie Simms and her brother Andrew Simms testified at trial. Angie worked at the jewellery store and she and Andrew were present when three men entered some time after noon on July 24. Angie and Andrew did not specifically identify anyone and denied seeing handguns. Nonetheless, following the event, Angie called her employer in a “fright” and did not work at the store again. (Reid points out that the general descriptions of the assailants and the timing of the event serve to exclude him as one of the assailants).
108After initially denying it, Coward remembered that after leaving the jewellery store on Eglinton, he, Davis and Reid drove to the parking lot behind 1620 Lawrence Avenue West. There were approximately 25 to 35 men and women in the lot who were drinking and mourning Face’s death. People were angry and they were holding the Eglinton Boys responsible. Several people said that somebody had to go down for it. Coward recalled seeing Hamilton and someone he believed to be Patrick Webb in the crowd. A witness, Garfield Brahan, testified that he recalled seeing Hamilton, Webb, Reid and Schloss at the parking lot on the afternoon of the 24th or the day after. Some of their cell phones registered in the area of the lot at the time Coward said he saw them there.
109After leaving the lot, Coward stated that he, Davis and Reid proceeded north on Jane Street. Reid was driving, Davis was seated in the front passenger seat and Coward was in the seat behind them. Reid pulled into a building on Falstaff Avenue to look for Roach (Colin Allen, one of the Eglinton Boys). As they drove in, Roach was driving towards them from the opposite direction. Either Davis or Reid said “isn’t that Colin Roach?” Coward responded “yes”, at which point Reid pulled out a gun, extended it out of the driver’s window and fired at Roach as he passed. It was “driver door to driver door”. Reid then drove to the other side of the building and proceeded north on Jane Street, where he dropped Coward off at his apartment.
110At the appellants’ preliminary inquiry, Colin Allen provided information for the first time about the shooting. His description of it was strikingly similar to Coward’s account. Allen described the van that fired on him as a “Chrysler Dodge Chevrolet van, something like that.” He thought it was grey or silverish in colour. On July 23, 2001, Reid rented a silver Dodge Caravan under the name Anthony White, one of his aliases. The van was returned on July 27, 2001. It largely matched the description provided by Coward.
111Bullets extracted from Allen’s car were tested forensically. Sometime after the August 7 interview, the police learned that the bullets from Allen’s car matched up with bullets found at the scene of the Watson and Lewis murders. No bullets from Davis’ Glock were found in Allen’s car. According to Coward, it was only Reid who fired at Roach. At the time of the August 7 interview, although the police were aware of the linkage between the bullets in the car driven by Allen and those extracted from Mr. Watson and Mr. Lewis, this information had not been released to the public. Finally, Davis’ cell phone registered in the vicinity of 30 Falstaff Avenue shortly after a resident heard gun shots and called 911.
The December 12, 2002 Statement
112On December 12, 2002, while Coward was still in custody awaiting trial on the York Region charges, he provided a second K.G.B. statement to D/Sgt. Martin and her partner, Det. Carter. After being cautioned and sworn, D/Sgt. Martin reminded Coward of the “promises” or “inducements” she had held out to him on the last occasion. In particular, she repeated the promise that his statement would not be used against him on any charges relating to the gun found in Davis’ car and that the police would make efforts to have him and his family placed in the witness protection program. Coward expressed a desire to be placed in the witness protection program and stated that he and his wife would want to be relocated before his statements were disclosed to the defence.
113At the outset of the December 12 statement, Coward confirmed that while he was off-camera during the August 7 interview, he was not offered any further inducements by the police, nor did any police officers threaten him in any manner. He agreed that when he spoke with officers off-camera, including D/Sgt. Martin, he did so at his own request and of his own volition. He further acknowledged that in the several off-camera discussions, he was the one who prompted the police to question him about Reid and the shooting incident on Falstaff Avenue involving Colin Allen. The police then provided Coward with his cell phone records and the remainder of the interview was mainly taken up with a review of those records, particularly his calls on July 24, 2001.
The January 16, 2003 Statement
114On December 22, 2002, Coward resolved the York Region charges by way of a plea of guilty. Over the Christmas weekend – December 27 to December 31 – Coward left voice messages for D/Sgt. Martin and Det. Carter, indicating that he wanted to see them to set something straight.
115On January 10, 2003, Det. Sepkowski testified at Davis’ trial on the York Region charges and in the course of his evidence, he referred to Coward’s December 12, 2002 meeting with the Toronto homicide officers. Det. Sepkowski relayed this information to Det. Carter after he finished testifying.
116On January 16, 2003, Detectives Carter and Horner attended at the Toronto West Detention Centre to speak with Coward. The meeting with Coward was audiotaped. Det. Carter anticipated that Coward might recant his earlier statements and Coward did just that.
117Coward maintained that he had not been honest with the police in his earlier statements. He said that, in truth, he had obtained the 9 mm Glock for Patrick Webb, not Everald Davis. He had misled the police earlier because Webb had threatened his family. He falsely implicated Davis because of the disparaging remarks Davis had made about him on the wiretaps. Coward denied witnessing the shooting of Colin Allen on Falstaff Avenue and claimed that he had made that up when speaking to D/Sgt. Martin.
118On February 7, 2003, Coward received a 10-month sentence on the York Region charges, in addition to a credit of 38 months for the 18 months he had spent in pre-trial custody.
The Preliminary Inquiry – March 2003
119Coward was called by the Crown as a witness at the preliminary inquiry. He testified over the course of 7 days.
120In examination-in-chief, Coward maintained that he purchased the gun in Florida for Patrick Webb. He admitted knowing Reid and Davis but claimed that he was not with them on July 24, 2001.
121Crown counsel then sought leave to cross-examine Coward on his August 7 and December 12 statements. Those statements were played in Coward’s presence. Coward maintained his position that he purchased the gun for Webb and that he was not with Reid and Davis on the day of the Watson and Lewis murders.
122The Crown then sought to have Coward’s August 7 and December 12 statements admitted for their truth. With the concurrence of defence counsel, the preliminary inquiry judge ruled that the Crown could cross-examine Coward on his prior statements and the defence counsel could do so as well, in addition to cross-examining him at large.
123In cross-examination by Crown counsel, Coward testified that the police coerced him into naming Davis as the person for whom he had purchased the gun in Florida. He was told that if he did not name Davis, he would be charged with offences relating to the gun and he would also face murder charges in relation to Watson and Lewis. As for the shooting incident on Falstaff Avenue involving Colin Allen, Coward stated that he told the police that he had heard rumours about it but that he did not know who was involved. According to Coward, the police told him to implicate Davis and Reid. He later changed his explanation and said that the police did not tell him what to say. Coward made the same claim in relation to the incident at the boutique on Eglinton. He had heard rumours about it but the police made him say that he, Reid and Davis were involved. He later changed that explanation and said that the police did not tell him what to say. Coward refused to accept that he recanted his K.G.B. statements because he was afraid of Reid and Davis, knowing what they might do to him.
124In cross-examination by Reid’s counsel, Coward provided a new explanation for his earlier statements. He agreed that when he spoke to the police on August 7, 2002, he knew that any hope he might have of receiving bail on the York Region charges would disappear if he were charged in connection with the Glock handgun. He also believed that because of his connection to the gun, he could be charged with the murders of Watson and Lewis. Finally, he knew that by cooperating with the police, he would put himself at risk in jail and he was not about to do that without obtaining a benefit in return.
125In cross-examination by Hamilton’s counsel, Coward changed his explanation again. He now conceded that he had no explanation as to why he had implicated himself in the boutique incident on Eglinton Avenue West or the shooting incident involving Colin Allen on Falstaff Avenue. He agreed that this was information he volunteered to the police; it was not something the police forced him to say. He also could not explain why he felt that the information relating to the boutique and the shooting of Colin Allen would be of any assistance to the Toronto police in their investigation of the Watson and Lewis murders.
The Trial Judge’s Ruling on Coward’s August 7 and December 12, 2002 K.G.B. Statements
126At trial, the defence argued that Coward’s two K.G.B. statements were inadmissible for the truth of their contents for one reason: they were the product of police coercion, having been obtained by promises or inducements.
127In support of this position, defence counsel referred to Lamer C.J.’s reasons in K.G.B. where, at pp. 298 and 299, the Chief Justice reserved to trial judges a residual discretion to disallow the admission of a statement for its truth even though the statement had been videotaped and there had been a warning and oath administered. In this regard, Lamer C.J. was concerned that there could be situations where the oath and videotape and the acknowledgement of the warning were made in circumstances that rendered them suspect “in the same way that confessions may be suspect if coerced by police investigators.”
128To account for those situations, Lamer C.J. suggested that “the test developed … for the admission of confessions” should be applied to prior statements where such statements are being tendered for their truth. Trial judges were to satisfy themselves, usually on a balance of probabilities, “that the statement was not the product of coercion of any form, whether it involves threats, promises, excessively leading questions by the investigator … or other forms of investigatory misconduct.”
129In view of that requirement, the defence maintained that because the Toronto police had promised Coward certain things, including transactional immunity in Canada in connection with the gun located in Davis’ car, Coward’s two K.G.B. statements should be treated as “suspect” and not admitted for their truth.
130The trial judge disagreed. In concluding that the two K.G.B. statements were admissible for their truth, he found as a fact that there were “two promises held out to Clarence Coward by the police” – one being transactional immunity in relation to the gun, the other being an implicit promise by D.C. Sepkowski that if Coward were truthful, the Toronto police could approach the York Regional Police “on the outstanding [home invasion] charges Mr. Coward faced in Newmarket … Obviously, Mr. Coward wanted some consideration if he cooperated with the Toronto Police, should he eventually be found guilty of the Newmarket charges”. In the trial judge’s opinion, however, “neither promise, nor both promises combined, coerced Mr. Coward into making the first videotape statement.”
131In his ruling, the trial judge acknowledged that “had the Crown attempted to use the statements against Mr. Coward as an accused, the statements would have been involuntary in the traditional sense of the voluntariness rule qua accused.” He believed, however, that different considerations apply to statements taken from a witness as opposed to an accused, one being the right of an accused to be free from self-incrimination. In the case of a witness, an inducement provided to obtain information needed “to bring real perpetrators to justice is generally proper, unless the inducement is coercive, thereby depriving the person giving the K.G.B. statement of his or her freedom of choice.” In this case, Coward was not deprived of his free will by virtue of the promises made to him. Accordingly, in the opinion of the trial judge, his “videotape statements [were] voluntary within the criteria delineated by the Supreme Court in R. v. B. (K.G.), supra.”
132Having made that determination, the trial judge went on to consider, in the exercise of his “residual discretion”, whether the admission of the K.G.B. statements “would bring the administration of justice into disrepute or render the trial unfair to the accused; for example, where the declarant is manifestly unreliable and the statement is devoid of confirmatory evidence.”
133In this regard, while the trial judge accepted that Coward may have had a motive to lie about Davis because Davis had made negative comments about him on the wiretaps and because he had reason to fear Davis, in his view, those factors prompted Coward to tell the truth so that he and his family could be “entered into the witness protection program.” As for Reid, the trial judge was satisfied that “Coward had no motive whatsoever to lie” about him.
134Having addressed the issue of Coward’s motive to speak to the police, the trial judge turned next to consider whether Coward’s videotaped statements were “manifestly unreliable.” In the opinion of the trial judge, they were not. Rather, he found them to be highly reliable for two distinct reasons:
I find … that the statements are highly reliable because they are confirmed in detail by independent evidence and because the highly-detailed particulars of the statement were volunteered by the declarant and were not in any way suggested by the police to the declarant. In fact, the police were surprised by the declarant’s statement that he was with Davis and Reid earlier on the day of the killings and that Reid had shot up Colin Allen’s van. Those details were totally unexpected, even though the details were merely incidental to the later killings.
135Lastly, the trial judge considered the defence submission that “it would be unfair to the accused if the jury were to assess the ultimate reliability of Clarence Coward in the absence of his cross-examination before them and in the absence of their opportunity to observe his demeanour.” The trial judge answered this concern by noting that the Crown had conceded that Coward’s “recantation in his third statement and at the preliminary inquiry should go to the jury so as to give them a complete picture of Clarence Coward.” Added to that, the trial judge noted that the jury would be privy to “hundreds of pages of cross-examination of Clarence Coward” from the preliminary inquiry and the jury could “observe his demeanour during the videotape statements.”
136In the end, the trial judge was satisfied that “the admission of the videotape statements [would] not render the accused’s trials unfair or bring the administration of justice into disrepute.” Accordingly, he ordered that the “four statements … be admitted, subject to requisite editing.”
Analysis
137We are satisfied that in admitting Coward’s two K.G.B. statements for their truth, the trial judge addressed the pertinent issues and came to the correct conclusion. The trial judge did not have the benefit of the Supreme Court’s helpful and instructive reasons in R. v. Khelawon (2006), 2006 SCC 57, 215 C.C.C. (3d) 161 when he delivered his ruling.
138Khelawon advocates a holistic approach to the question of threshold reliability. In some instances, the threshold test for reliability will be met by simply looking at the circumstances under which the statement came about. In others, circumstances external to the making of the statement will allow for sufficient testing of the truth and accuracy of the statement. At para. 49 of Khelawon, Charron J. succinctly explained the two different criteria that are relevant to the reliability requirement:
The criterion of reliability is about ensuring the integrity of the trial process. The evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it. As we shall see, the reliability requirement will generally be met on the basis of two different grounds, neither of which excludes consideration of the other. In some cases, because of the circumstances in which it came about, the contents of the hearsay statement may be so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process. In other cases, the evidence may not be so cogent but the circumstances will allow for sufficient testing of evidence by means other than contemporaneous cross-examination. In these circumstances, the admission of the evidence will rarely undermine trial fairness. However, because trial fairness may encompass factors beyond the strict inquiry into necessity and reliability, even if the two criteria are met, the trial judge has the discretion to exclude hearsay evidence where its probative value is outweighed by its prejudicial effect. [Emphasis added.]
139For present purposes, Khelawon is significant because of the court’s clear statement, at para. 100, that the inquiry into threshold reliability need not be limited to the circumstances surrounding the making of the statement. Rather, the broader picture, including the existence of corroborative evidence, may be considered in deciding whether the statement is inherently trustworthy and thus sufficiently reliable to warrant its reception as evidence of the truth of the matters stated therein.
140Before addressing in fuller terms the impact of Khelawon on the issue at hand, we propose to return to K.G.B. and address the appellants’ chief, and indeed only complaint, that because the police made promises to Coward to induce him to speak, the trial judge erred in admitting his two K.G.B. statements for their truth. According to the appellants, because the two K.G.B. statements were the product of inducements, pursuant to the Supreme Court’s decision in K.G.B., they ought not to have been admitted regardless of Coward’s status as a witness rather than as an accused.
141We refuse to give effect to that argument. In particular, we do not read K.G.B. as laying down a hard and fast rule that all witness statements taken in contravention of the traditional confessions rule must necessarily be rejected as evidence of the truth of their contents.
142In K.G.B., Lamer C.J. introduced the pertinent discussion of “the rule relating to confessions” at p. 298 as follows:
Even where there has been a warning and oath administered, and the statement videotaped, or sufficient substitutes established, the trial judge will still have the discretion to refuse to allow the jury to make substantive use of the statement. [Emphasis added.]
143The Chief Justice’s choice of the word “discretion” is, in our view, significant. It leads us to believe that he did not intend to create a hard and fast rule, particularly in view of the rationale he gave, also at p. 298, for concluding that trial judges should retain a residual discretion:
Proponents of the orthodox rule voice the concern that malign influences on the witness by police may precede the making of the statement and shape its content, in the same way that confessions may be suspect if coerced by police investigators. That is, it still may be the case that the oath and videotape, and the acknowledgement of the warning, were made under circumstances that make them suspect.
For this reason, the test developed by this court for the admission of confessions is well suited to making a threshold determination of whether the circumstances under which the statement was made undermine the veracity of the indicia of reliability. [Emphasis added.]
144In this passage, the Chief Justice is cautioning trial judges not to become mesmerized by the indicia of reliability. When the indicia of reliability are found to exist, normally this will justify the admission of a statement for its truth. But there may be cases where the trial judge is concerned that the indicia of reliability are a façade – and in such circumstances, the voluntariness branch of the confessions rule provides a ready-made guide to assist trial judges in making their threshold reliability determination. For example, if a trial judge were to entertain a real concern that a witness’ statement was the product of police coercion and the witness simply told the police “what the police wanted to hear”, this would necessarily undermine the veracity of the indicia of reliability and render the proposed statement inadmissible for its truth. In that sense, the residual discretion vested in trial judges may be seen as a safety valve. It ensures that the decision to admit a statement for its truth does not devolve into a merely mechanical exercise.
145Interpreting K.G.B. in this fashion does not undermine the concerns raised by the Chief Justice in which he expressed the view that judges must be given a residual discretion. But just as the question of admission should not be treated as a mechanical exercise, neither in our view, should the question of exclusion. The per se rule suggested by the appellants runs precisely that risk – and we reject it for that reason.
146Common sense alone would indicate that the Chief Justice was not advocating a per se rule in the case of witness statements. Surely, he did not intend, without more, that the valuable evidence of a terrified witness should be lost because the witness would only speak on the promise that the police would take steps to enroll the witness in a witness protection program.
147In this case, the trial judge considered the promises and inducements held out to Coward. He was clearly satisfied that they did not impact on the voluntariness of Coward’s statements, nor were his statements a product of police coercion. On the contrary, he found that Coward spoke willingly to the police and his statements were voluntary and the product of his free will.
148Those findings were available to the trial judge and we see no basis for interfering with them. In short, having considered the promises and inducements made to Coward, the trial judge was satisfied that they did not undermine the veracity of the indicia of reliability. Hence, he concluded that Coward’s two K.G.B. statements were admissible for their truth. In our view, that conclusion is unassailable.
149If, however, we are wrong in our assessment of K.G.B. and the appellants are correct that it stands for the proposition that where the police make promises to a witness to induce the witness to speak, the ensuing statement can never be admitted for its truth, we are respectfully of the view that K.G.B. has, to that extent, been overtaken by Khelawon.
150Without being critical, when K.G.B. was decided, the law was at best murky on the extent to which a court could look beyond the circumstances surrounding the making of the statement in assessing threshold reliability. It can, however, be fairly said that the spotlight was definitely focused on the circumstantial guarantees of trustworthiness surrounding the making of the statement.
151Following K.G.B., the law on this subject remained unsettled until the Supreme Court gave its decision in R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144. Starr put to rest any notion that a court could look beyond the four corners of the statement in making its threshold reliability assessment. At paras. 215 and 217, the court stated:
Threshold reliability is concerned not with whether the statement is true or not; that is a question of ultimate reliability. Instead, it is concerned with whether or not the circumstances surrounding the statement itself provide circumstantial guarantees of trustworthiness.
At the stage of hearsay admissibility the trial judge should not consider the declarant’s general reputation for truthfulness, nor any prior or subsequent statements, consistent or not. These factors do not concern the circumstances of the statement itself. Similarly, I would not consider the presence of corroborating or conflicting evidence. [Emphasis added.]
152But Starr, like K.G.B., has been overtaken by Khelawon. Trial judges are no longer restricted to considering the circumstances surrounding the making of the statement in assessing threshold reliability. They can now consider the broader picture, including the existence of corroborative evidence, in deciding whether a statement is inherently trustworthy and thus sufficiently reliable to warrant its admission for the truth of its contents.
153In short, post-Khelawon, the emphasis appears to have shifted away from potential unreliability and is now more focused on actual reliability – something the confessions rule does not concern itself with. This point was made succinctly by Cory J. in R. v. Hodgson, 1998 798 (SCC), [1998] 2 S.C.R. 449, at paras. 19 and 20, some five years after K.G.B. was decided:
It must be recognized that the purpose of the confessions rule is to exclude putatively unreliable statements, not actually unreliable statements. In other words, the confessions rule excludes statements obtained by force, threat or promises as somehow inherently unreliable, but does not inquire into the actual truth or falsity of the statement. If the concern of the confessions rule were truly the reliability of the statement, then the court’s inquiry would focus on objective corroboration of the confession evidence; if additional evidence confirmed the confession was accurate, it should be admitted under a reliability rationale.
Instead, the confessions rule asks only if the statement was voluntary, not if the statement is true. [Emphasis added.]
154Once it is accepted that the threshold reliability assessment is not restricted to the circumstances surrounding the making of the statement, using the confessions rule as the sole arbiter upon which to base the assessment is counter-intuitive, if not plainly illogical. That is the position the appellants seek to persuade us of and it is one we reject.
155Khelawon, in our view, requires trial judges to ask two questions in deciding whether a witness statement should be admitted for its truth:
On the basis of the evidence presented, is the trier of fact able to sufficiently test the truth and accuracy of the statement in issue?
If the answer to question one is “yes”, are there overriding policy considerations that would prevent the statement from being admitted for its truth?
156With respect to the first question, as Khelawon explains, in some instances, the answer will be apparent having regard to the circumstances under which the statement came about. In others, circumstances external to the making of a statement will be such that the trier of fact can sufficiently test the statement’s truth and accuracy. In still others, a combination of the two will satisfy the threshold reliability requirement.
157With respect to the second question – policy concerns – if the police were to engage in misconduct such as beating a witness to obtain a statement, or conduct that would otherwise bring the administration of justice into disrepute, such as posing as a priest in a confessional, the statement would almost certainly be rejected as evidence of the truth of its contents: see K.G.B., at p. 299 and R. v. Rothman (1981), 1981 23 (SCC), 59 C.C.C. (2d) 30 (S.C.C.), at p. 74. Another example would be where the probative value of the statement is outweighed by its prejudicial effect: see Khelawon, at para. 49.
158Applying those principles to the case at hand, we note that although the trial judge did not have the benefit of Khelawon, he considered in his reasons under the heading, “Residual Discretion”, the strong corroborative evidence that lent support to the veracity of Coward’s two K.G.B. statements. He also noted that although Coward was absent from the trial, the jury would have the benefit of his evidence from the preliminary inquiry where he was fully cross-examined by the defence. Moreover, the videotapes of his K.G.B. statements would provide the jury with a window into his demeanour.
159Those factors, in combination with the trial judge’s earlier finding that despite the promises made to him, Coward’s two K.G.B. statements were given voluntarily, of his own free will and without coercion, were sufficient in the trial judge’s view to warrant the admission of the K.G.B. statements for their truth. In line with Khelawon, we are satisfied that he came to the correct conclusion.
160Accordingly, we would not give effect to this ground of appeal.
2. Did the trial judge err in including Coward’s preliminary inquiry testimony in the package of evidence presented to the jury?
161The appellants contend that the trial judge erred in providing the jury with Coward’s preliminary inquiry testimony. In particular, they submit that in doing so, the jury was improperly exposed to the Crown’s cross-examination of Coward (following a finding that Coward was a hostile witness) in which the Crown suggested that it was the “violent dispositions” of Reid and Davis that prompted Coward’s recantation. Alternatively, the appellants submit that defence counsel should have been given an “election as to what portions of their cross-examination would be placed before the jury.”
162In support of their primary submission – that Coward’s evidence from the preliminary inquiry should have been withheld from the jury – the appellants submit that Coward’s third statement, in which he recanted his two K.G.B. statements, should simply have been left to the jury as a prior inconsistent statement, which the jury could consider in testing the veracity of his K.G.B. statements. Had the third statement been treated in that fashion, there would have been no basis for the Crown to introduce Coward’s testimony from the preliminary inquiry. Admitting the third statement for the fact that it was made, and not for its truth, would have left Coward’s substantive evidence unaffected. And because the subsequent inconsistent statement would not have rendered Coward a hostile witness, there would have been no basis for the Crown to cross-examine him under s. 9(2) of the Canada Evidence Act, R.S.C. 1985, c. C-5.[5]
163According to the appellants, “the ruling of the trial judge effectively allowed the prosecution, in redirect, to cross-examine their own witness on a statement not raised by the defence in cross-examination.” Moreover, it exposed the jury to the Crown’s suggestion that Coward’s recantation was driven by his fear of Reid and Davis, thereby “needlessly risk[ing] an inference of guilt from bad character.”
164As for the secondary argument – that defence counsel should have been given an election as to what portions of their cross-examination would be placed before the jury – the appellants submit that “defence counsel may well pursue lines of cross-examination at a preliminary inquiry that are abandoned at trial” and that their “control over trial strategy should not be suspended because the witness is unavailable” and the Crown “resorts to s. 715 of the Criminal Code[6] or the principled exception to the hearsay rule.” In particular, the appellants submit that it was improper to permit the Crown to take advantage of a portion of Coward’s cross-examination in which defence counsel for Hamilton effectively “discredited Coward’s explanation for the statements of August 7, 2002 and December 16, 2002.”
165We do not give effect to these submissions for several reasons, the primary one being that they were not raised at trial and bear no relation to the submissions made by defence counsel to the trial judge.
166At trial, defence counsel sought to have Coward’s third statement admitted for its truth. No one suggested that it should simply be treated as a prior inconsistent statement – and with good cause, at least from Davis’ perspective.
167In his third statement, Coward shifted the spotlight from Davis to Patrick Webb. He now claimed that the gun he had purchased in Florida was for Webb, not Davis. He further stated that he had implicated Davis because Webb was threatening his family.
168From Davis’ perspective, it was important that he be able to point the finger at Webb as a third party suspect. Coward’s allegations against Webb provided Davis with the core information he needed to pursue that defence – but he could only do so if Coward’s allegations against Webb, contained in the third statement, were admitted for their truth.
169And that explains, at least in part, why defence counsel at trial were insistent that Coward’s third statement be treated as a K.G.B. statement, either independently or as an addendum to his two earlier K.G.B. statements. Those arguments, which the trial judge rejected, are not pursued on appeal. Instead, the appellants seek to advance the “prior inconsistent” statement argument – an approach that does not coincide with the approach they took at trial. For that reason alone, we would not give effect to it.
170Likewise, defence counsel at trial did not raise concerns about exposing the jury to the Crown’s cross-examination of Coward in which the Crown suggested that it was the “violent dispositions” of Reid and Davis that prompted Coward’s recantation. In any event, the trial judge provided the jury with a strong limiting instruction on the use of bad character evidence. In the light of this instruction, there is no basis for inferring that the jury would have misused the preliminary inquiry evidence as the appellants now suggest.
171Finally, the appellants did not ask the trial judge to limit the preliminary inquiry evidence that went to the jury. Like the other complaints that we have mentioned, this one too suffers from the fact that it was not raised at trial.
172It is apparent that the real reason why the defence did not want Coward’s preliminary inquiry evidence left with the jury is because it exposed the incredulity of his reasons for recanting and the inanity of his explanations for providing the K.G.B. statements in the first place – all of which served to undermine, if not eviscerate, the veracity of his recantations.
173By way of elaboration, in his third statement to the police, which the appellants wanted the jury to have, Coward provided two reasons for recanting. First, he claimed that although he had purchased the gun in Florida for Webb, not Davis, Webb had threatened to harm Coward’s family if Coward implicated him in the purchase of the gun. Second, Coward chose to falsely implicate Davis because he was angry at Davis for making disparaging remarks about him on the wiretaps. Notably, he gave no reason for falsely implicating Reid.
174At the preliminary inquiry, Coward provided a litany of explanations for implicating Davis and Reid in his K.G.B. statements. First, he claimed that the police coerced him into naming Davis as the person for whom he had purchased the gun. He was told that if he did not do so, he would be charged with offences relating to the gun and he would also face murder charges in relation to Watson and Lewis.
175As for the shooting incident on Falstaff Avenue, Coward stated that he told the police he had heard rumours about it but he did not know who was involved. The police told him to implicate Reid and Davis. Coward made the same claim in relation to the incident at the boutique on Eglinton. He later denied that the police told him what to say in relation to those incidents. Contrary to his second K.G.B. statement, in which he confirmed that nothing untoward occurred on August 7, 2002 when he was off-camera, Coward now maintained that the police threatened him and told him what they wanted to hear when the camera was not running.
176Coward testified that there were other reasons for falsely implicating Reid and Davis in his K.G.B. statements. These included his claim that he had been roughed up before by one of the York Region officers and he was frightened of him; he was upset with Davis because of the negative things Davis had been saying about him; Webb had told him to say that he had given the gun to Davis; and in an effort to get bail on the York Region charges, he lied to the police to help his position.
177In cross-examination by Hamilton’s lawyer, Coward conceded that he had no explanation for why he had implicated himself in the Falstaff shooting or the Eglinton boutique incident. He also could not explain why he felt the information relating to the shooting or the boutique would assist the Toronto police in their investigation of the Watson and Lewis murders.
178Against this backdrop, it is little wonder that the defence only wanted the jury to receive Coward’s third statement and not his evidence from the preliminary inquiry.
179But, as the trial judge rightly concluded, the defence was not entitled “to have their cake and eat it too”. If the defence wanted to have Coward’s initial recantation placed before the jury, they had to accept the good with the bad. Coward’s motivation for recanting was critical. The Crown put it down to his fear of Reid and Davis. The defence wanted to limit it to the two reasons Coward mentioned in his third statement.
180While the trial judge was quite properly concerned, as a matter of fairness to the defence, that the jury should be apprised of Coward’s recantation, he was not prepared to leave the jury with a false and misleading impression at the instance of the defence. While the defence was entitled to a level playing field, it was not entitled to a field that tilted unfairly and misleadingly in its favour. The jury was entitled to the full picture – and that is precisely what the jury got: see generally Charron J.’s reasons in R. v. Laboucan (2010), 2010 SCC 12, 253 C.C.C. (3d) 129 (S.C.C.), at paras. 15, 21 and 22.
181In these circumstances, we need not decide whether Coward’s preliminary inquiry evidence was admissible under s. 715 of the Criminal Code or under the principled approach to hearsay or merely as a function of the trial judge’s discretion to ensure a fair trial. Whatever the basis for admissibility, in our view, Coward’s evidence from the preliminary inquiry was properly placed before the jury.
182Accordingly, we do not give effect to this ground of appeal.
3. Did the trial judge err in failing to give the jury a Vetrovec warning in relation to Coward?
183The appellants submit that the trial judge erred in failing to give the jury a Vetrovec warning in relation to Coward. They submit that Coward’s evidence was essential to the Crown’s case against Reid and integral to its case against Davis. They further submit that Coward’s credibility was highly suspect given his unsavoury background, his criminal record, his admitted perjury and his willingness to tell the police whatever the police wanted to hear to better his own situation. In these circumstances, the appellants submit that a Vetrovec warning was mandatory.
184The trial judge did not see the necessity of a Vetrovec warning. In his view, Coward did not present as an unsavoury witness and his criminal record was relatively modest. It consisted of a dated drug-related conviction for which he received a 15-day sentence and convictions for robbery and unlawful possession of a firearm. The robbery charge related to the York Region home invasion and the firearm charge related to the gun found on Coward when he was arrested for the home invasion charges. That was the extent of his criminal record at the time his evidence was tendered at trial and there was little else in his background and character that would justify an “unsavoury witness” finding.
185Against that backdrop, the trial judge did not feel that a Vetrovec warning was required. For reasons that follow, we find it unnecessary to decide whether he was correct. We do note, however, that trial judges are entitled to a good deal of latitude in this area and their decisions should not be lightly interfered with on appeal: see R. v. Bevan (1993), 1993 101 (SCC), 82 C.C.C. (3d) 310 (S.C.C.), per Major J. at p. 326.
186That said, we think the safer course would have been to provide the jury with a Vetrovec warning. Coward’s evidence was central to the Crown’s case against Reid and important to its case against Davis. There were credibility problems with his evidence. If nothing else, prudence dictates that the jury should have been impressed with the need to proceed with considerable caution before acting on Coward’s evidence, without more, to convict Reid and/or Davis: see R. v. Brooks (2000), 2000 SCC 11, 141 C.C.C. (3d) 321 (S.C.C.), per Major J. for the majority on this point at p. 347.
187However, when the charge is considered as a whole, we are satisfied that the jury received the equivalent of a Vetrovec instruction. Specifically, the jury would clearly have understood that they were to proceed with caution before convicting either Reid or Davis on Coward’s evidence, without more, and the reasons for this need for caution.
188In his charge, the trial judge told the jury that Coward “either perjured himself during the first two statements or did so at the preliminary inquiry” and that as an “admitted perjurer”, the jury “must be most careful in assessing his evidence.” Both versions of his evidence could not “each be true” and the jury was to “look for confirmatory evidence supportive of one or the other versions.”
189Pausing here, the appellants take issue with that instruction. They submit that it invited the jury to simply choose between the two versions and in doing so, effectively shifted the burden away from the Crown where it belonged. Moreover, they argue that to the extent Coward’s evidence helped Reid and Davis, there was no need for the jury to “look for confirmatory evidence” to act on it and the trial judge erred in instructing the jury otherwise.
190We would not give effect to those submissions. Commencing with the first complaint, the trial judge in the ensuing paragraph specifically told the jury that the Crown bore the onus of proving that the K.G.B. statements were truthful:
However, the onus is on the Crown to satisfy you that the videotaped statements are truthful with respect to Everald Davis and Michael Reid.
191The trial judge repeated this instruction at the end of his specific instructions on Coward:
In the end, it is the Crown who must satisfy you to find as fact that Clarence Coward is telling the truth about giving Everald Davis the gun prior to July 24, 2002 [sic], that he is telling the truth about the visit to the jewellery store with Reid and Davis, and that he is telling the truth about Reid’s shooting up of Colin Allen’s rental van. You may so find but only after a most careful assessment of Clarence Coward, given his subsequent recantation under oath. He was a perjurer either during the first two sworn videotape statements or at the preliminary inquiry.
192As for the second complaint, while we agree that the jury could act on Coward’s “helpful” evidence without more, the impugned instruction did not direct the jury otherwise. Rather, in our view, it simply amounted to a common sense proposition that the jury would wish to consider in deciding whether the Crown had met its onus of establishing that Coward was telling the truth.
193The more fundamental concern of the appellants is that the trial judge inappropriately focused the jury’s attention on Coward’s admitted perjury and in doing so, he failed to mention the many other factors that impacted on his credibility and heightened the need for caution in assessing his evidence. According to the appellants, the jury should have been alerted to Coward’s criminal antecedents; his involvement in the importation of guns into Canada; his interest in escaping liability for bringing guns into Canada and, in that regard, the inducements he obtained from the Toronto police; his knowledge that the Toronto police were looking for information pertinent to the Watson and Lewis murders; and the advantage he hoped to gain for himself on the York Region charges.
194We do not deny the significance of those matters, nor do we question the importance of alerting the jury to them. But when the addresses of counsel are considered along with the trial judge’s charge as a whole, it becomes apparent that these matters, or most of them, were brought to the jury’s attention time and time again.
195Fixing solely on the charge, the trial judge reviewed in painstaking detail, not once but twice, the positions of Reid and Davis both on a general level and specifically in relation to Coward. By way of example, in his review of Reid’s position, the trial judge stated:
As for Clarence Coward he lied in his videotaped statements to get back at Everald Davis. He lied about Michael Reid because Reid was Davis’s friend and Coward wanted to get back at Davis. Clarence Coward’s first videotape statement is replete with internal inconsistencies and patent lies. He initially said that he had not been at the jewellery store, that he had not been at Falstaff, that he had not been in the parking lot behind 1620 to 1622 Lawrence Avenue West. Given those initial denials, it is impossible to believe that he is later telling the police the truth that he indeed did visit those locations with Michael Reid and Everald Davis.
The Crown’s case depends on the evidence of a gun-toting, car-washing drug bandit, Clarence Coward. Clarence Coward has absconded and therefore prevents you from assessing his demeanour and his credibility as a witness at this trial. His evidence is unreliable and you must not convict Michael Reid on the basis of Clarence Coward’s perjured evidence.
Defence counsel urges you to reject as untrue the evidence of Clarence Coward, an inveterate liar. After his arrest on September 10th, 2001, with a loaded gun on his person, Coward immediately lied to the police. He denied his guilt but later pled guilty to the kidnapping and robbery charges. On January 16th, 2002, Coward attempted to get back at Everald Davis when he said that Michael Reid had shot at Colin Allen’s vehicle. Coward lied about Reid because Reid was Davis’s friend. Coward’s videotaped statement on August 7th, 2002, was bought testimony. It was purchased. He was given immunity from the gun charges.
Colin Allen also said that his car was shot at between 11 a.m. and 1 p.m. ... At 1:02 p.m. Reid phoned Coward and at 1:07 p.m. Coward phoned Davis. At those times Coward was obviously with neither Reid or Davis. Clarence Coward is an unsavoury person, a congenital liar. You must not convict Michael Reid on the basis of Clarence Coward’s purchased evidence.
196The trial judge provided the jury with a similar review in relation to Davis:
As for Clarence Coward, you must be most careful in assessing his perjured evidence. He is a manipulative liar whose lies are always self-serving. The police used coercion and promise of advantage to get Coward to falsely accuse Everald Davis. Be mindful and circumspect about what happened off camera between Clarence Coward and Detective Nicol who threatened to charge Coward with murder unless he switched from Ginga to Ninja as being the person to whom he had given the Glock 26 murder weapon prior to the killings of Watson and Lewis.
As for Clarence Coward, you should be most careful in assessing his evidence. He is a manipulative perjurer who lied to serve his own self-interest. Clarence Coward had from June 2002 until August 7th, 2002, to think about what he might tell the police about the murders. Furthermore, Coward was aware that Davis on the intercepts was upset with Coward, though, of course, there were no direct threats by Davis on the intercepts to harm Coward. By December 18th, 2002, Davis, through Essue, had learned that Coward was running off his mouth about the Falstaff incident. Nothing more.
Keep in mind the presence of coercion or promises by the police which may have caused Coward to falsely accuse Davis and Reid. Be suspect or suspicious of what allegedly happened off camera. Coward testified at the preliminary inquiry that the police had threatened to charge him with a gun and two murders unless he switched from Ginga to Ninja as the man in possession of the Glock murder weapon. He had to switch the identities even though it was false. The police forced him to do so under threat of serious criminal charges.
197The trial judge also provided instructions about Coward that were pertinent to both Reid and Davis. One such example appears below:
However, a different rule applies to the rumours as they relate to Clarence Coward. It is the position of the accused Michael Reid and Everald Davis that Clarence Coward fabricated his videotaped statements as they relate to the visit to the jewellery store on Eglinton Avenue West and to the shooting at Roach’s vehicle on Falstaff Avenue and to the visit at the hangout behind 1620 and 1622 Eglinton Avenue West (sic). Rumours were rife in the Jamaican community as to these incidents, and Clarence Coward, who knew of the rumours, could have simply positioned himself together with Michael Reid and Everald Davis as participants in the incidents when, in fact, neither was involved in either incident. It was simple for Clarence Coward to substitute Reid and Davis for the real participants because Clarence Coward knew all the details of the rumours, particularly those relating to the visits to the jewellery store and to Falstaff Avenue.
198In addition to the comments of defence counsel and the trial judge, Crown counsel drew the jury’s attention to the concerns surrounding Coward and the need to look for confirmatory evidence before acting on his evidence:
… Mr. Coward’s evidence does not stand alone. Make no mistake about it. The Crown would not stand here and argue that you should base your decision on his unconfirmed evidence. Mr. Coward is a flawed individual with criminal antecedents who has given differing accounts of what happened. We’re asking you to consider Mr. Coward’s evidence in light of all of the other evidence in this trial, much of which supports and confirms what Mr. Coward told the police on August 7, 2002, and December 12, 2002.
199We agree with the following submissions made at paras. 109 and 113 of the Crown’s factum:
Bearing in mind everything this jury heard about Coward, it could not have escaped their attention that his evidence was highly controversial, that it required great caution before acting on it, and that they had to look for independent corroboration before doing so.
In short, a substantial portion of the charge was devoted to reviewing Coward’s lies, his statements, his unsavoury past and present, the fact the jury had to exercise caution, and how corroboration should be approached. The jury had all the Vetrovec tools it needed. At the end of the day, convictions flowed on Reid and Davis because the jury did their job, looked for corroboration, and found it in piles of evidence.
200In view of our conclusion that the jury was given the functional equivalent of a Vetrovec instruction, we need not revert to the curative proviso in s. 686(1)(b)(iii) of the Criminal Code. Had we found it necessary to do so, we would have paid particular attention to the way in which Coward’s first K.G.B. statement came about and the trial judge’s findings in relation to it, including his findings that Coward was forthcoming, that he prompted the police to question him about the Falstaff shooting incident and that he volunteered information that was not in the public domain. We also would have placed considerable emphasis on the fact that Coward’s evidence was confirmed in its material respects by a wide and impressive body of independent evidence.
201In the end, for these reasons, we do not give effect to this ground of appeal.
IV. The Severance Application
202The appellant Reid contends that the trial judge erred in refusing his application for an order severing his trial from that of the co-accused. Severance was sought principally on the basis of the prejudicial effect of the intercepted communications of the co-accused, wherein they were plotting to kill Reid because he was “telling people everything that he did on the road”. The trial judge dismissed the application as follows:
However, defence counsel contends that Mr. Reid cannot obtain a fair trial because the jury would hear wiretap intercepts which are inadmissible against him but which indicate that he participated in the killings of Watson and Lewis and in the shooting of Medder. It seems to me that this situation is analogous to a confession made by one accused which implicates another accused. The jury must be instructed that the evidence is admissible only against the maker and not admissible against the other person who was not a party to the confession and who, thus, had no opportunity to refute the truth of the accusation.
203Reid argues that the evidence that his co-accused had formed a conspiracy to kill him because they were concerned that he would divulge information to an undercover police officer was so prejudicial to him that his case should have been tried separately from the others so that his jury would not hear this evidence. Reid contends that no instruction to the jury could cure the prejudicial effects of the wiretap conversations. He says that the taped statements had no relevance unless the jury concluded that Reid was a participant in the homicides. It is therefore unrealistic, he submits, to expect that the jury could use the evidence against his co-accused but not against him. He submits that the decision of the trial judge not to allow severance was unreasonable and resulted in an injustice.
204With respect to the policy considerations weighing against severance, Reid asserts that there was very little risk of inconsistent verdicts and that cost efficiencies are outweighed by the risk of a miscarriage of justice.
205We do not give effect to these submissions. In our view, the trial judge was entitled to refuse to grant severance and his decision is entitled to deference. We reach this conclusion for several reasons.
206A trial judge may order severance of the trial of a co-accused only if satisfied that “the interests of justice so require”: Criminal Code, s. 591(3)(b). The interests of justice encompass those of the accused, the co-accused, and society’s interest in seeing that justice is done in a reasonably efficient and cost-effective manner: see R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 16.
207A trial judge will direct severance only if the accused seeking it overcomes the presumption that two co-accused, who are jointly charged and are said to have acted in concert, should be tried together: see R. v. Savoury (2005), 2005 25884 (ON CA), 200 C.C.C. (3d) 94 (Ont. C.A.), at para. 22. In addition, factors that a court may consider in deciding to refuse severance include the desire to avoid a multiplicity of proceedings and the prospect of two lengthy trials, having regard to the evidence to be called: see Last, at para. 18.
208A trial judge’s decision on severance is an exercise of discretion and is entitled to deference: see R. v. Litchfield, 1993 44 (SCC), [1993] 4 S.C.R. 333, at pp. 353-54. This court will interfere where the trial judge fails to consider relevant principles, or has considered irrelevant principles. However, even then, this court will review the exercise of a trial judge’s discretion against a reasonableness standard: see R. v. McKnight (1999), 1999 3717 (ON CA), 44 O.R. (3d) 263 (C.A.), at p. 273.
209As noted, Reid submits that the prejudice to him of being tried with his co-accused outweighed the slight risk of inconsistent verdicts. He says this risk was minimal because his defence was not antagonistic towards the defences advanced by his co-accused. In other words, he says that there was no danger of inconsistent verdicts because he was not pointing at anyone, and no one was pointing at him.
210While Reid is correct that the risk of inconsistent verdicts was minimal, such a risk is merely one of several policy reasons to be considered in ordering separate trials. We are of the view that, although the risk of inconsistent verdicts was slight, any chance of a miscarriage of justice was eliminated by the trial judge’s various instructions to the jury on the way they could use the wiretap conspiracy evidence.
211The jury was clearly instructed that the intercepts of Reid’s co-accused about killing Reid and the inferences that could be taken from those comments were not admissible against Reid because he was not a party to the discussions to kill himself. In his instruction to the jury on the use they could make of the evidence of the plot to kill Reid, the trial judge said:
In the end, it would be open to you to infer and find as fact, though you need not do so, that Davis’s statement during the intercepts, that Schloss’s statements during the intercepts, and that Hamilton’s statements during the intercepts constitute an implicit admission that the maker of the particular statement indeed had participated in the murders of Paul Watson and Michael Lewis. However, you may not so infer unless you first find as fact from the context of the intercepts that the fear and panic that the three accused expressed about Reid’s conduct was because Michael Reid was, in fact, talking to third parties in jail about his own involvement and the involvement of Hamilton, Schloss and Davis in the murders of Paul Watson and Michael Lewis. That is a precondition. Finally, I repeat that whatever Michael Reid may have said to the third parties in jail is not in any manner admissible for or against him. He was not a party to the wiretap interceptions.
212This instruction was repeated in varying ways in the charge. It was also repeated in response to a question by the jury:
The evidence, of course, is not admissible, not admissible against Michael Reid, a non-party to the interceptions, in fact, the proposed target of murder himself. So they are not admissible against Mr. Reid in the least.
213The jury would have understood these instructions, as well as those given mid-trial, and would have followed them. This is especially true given that the Crown also provided an additional warning to the jury during its closing address about not using the co-accused’s intercepts against Reid.
214It is well established that juries should be assumed to understand and follow such instructions: R. v. Suzack (2000), 2000 5630 (ON CA), 141 C.C.C. (3d) 449 (Ont. C.A.), at paras. 99-102, (application for leave to appeal dismissed, [2000] S.C.C.A. No. 583), quoting R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670, at pp. 692-93. We see no reason to believe that the jury did not understand the trial judge’s instructions. On the contrary, we assume that the jury properly considered the plot to kill Reid when weighing the evidence against the co-accused, and then disregarded this same evidence when turning their minds to the guilt of Reid.
215Reid relies on several cases, including this court’s decision in Savoury, where severance was granted to a co-accused. However, in Savoury, the defendant was able to establish that a single trial would have denied him his right to make full answer and defence because of his desire to call his co-accused as a defence witness, something he would not be able to do if the two were tried together. That case is thus distinguishable.
216Reid makes one additional argument. He says that severance was also required because he was identified by his nickname “Killer” in the wiretap intercepts. He contends that references to his street name or nickname “Killer” were prejudicial and that the way the trial judge dealt with the editing of the name from the transcripts and intercepts only compounded the prejudice associated with this nickname.
217We disagree. At defence counsel’s request, Reid’s nickname was carefully edited from all transcripts and intercepts and each side ensured that their witnesses did not use it. There was only one occasion when the name “slipped out” and this was found to be the fault of everyone involved. The jury was clearly and unequivocally instructed after the error occurred as follows:
Members of the jury, last week you heard an intercept in which there was reference to one of the accused Michael Reid’s nicknames not being either Dog or Richie. The nickname used was unfair and irrelevant and must, therefore, be completely disregarded. In fairness to Mr. Reid, do not speculate as to what the nickname was. Simply disregard it if, indeed, you recall it.
218The trial judge was correct to refuse severance and his instructions more than addressed the attendant prejudice that may have resulted. Reid has failed to establish that the trial judge did not act judicially or that the decision to refuse severance worked an injustice to him. This ground of appeal is dismissed.
V. Admissibility of Schloss’ Song
219The appellant Schloss complains that the trial judge erred in admitting, over the objection of defence counsel, an intercept containing a song that Schloss sang over the phone to an acquaintance known as Keisha. The song contained the lyric “From the day I see my friend die, That’s the day I let my gun cry.”
220Schloss submits that the prejudicial effect of the song substantially outweighed its probative value. He relies on R. v. Terry, 1996 199 (SCC), [1996] 2 S.C.R. 207, at para. 29 for the proposition that a song as a form of artistic expression is not necessarily probative of the “truth” expressed in it. There is a danger that the jury would “accept the [song’s] oblique factual similarity with actual events to infer directly that the appellant was the author of both the [song] and the events.”
221In a brief ruling on the admissibility of the song, the trial judge held that he was “satisfied that it is open to the jury to find that the accused Lennox Schloss implicitly admitted that he discharged his gun at Paul Watson and Michael Lewis during his singing on the intercept.” According to the trial judge, that Schloss had undoubtedly written the song was the “over-riding consideration” in favour of its admissibility.
222We accept that the song by Schloss was open to other interpretations than a reference to his participation in the shootings of Watson and Lewis after Christian’s murder. The Crown in closing acknowledged as much when he told the jury that the song “would never stand on its own, but, again, it’s another piece that you can stack up on top of other pieces.” Moreover, the trial judge instructed the jury to carefully assess the value of the song and to consider whether it reflected fact, “wishful thinking”, or “imaginative concoction”:
In assessing the evidentiary value of the song, you must first determine whether the accused Schloss is referring to the death of his friend Omar Christian. If so, you must next determine whether the accused Schloss is implicitly asserting that he personally participated in the vengeance of his friend’s murder or simply that it was wishful thinking on his part. Counsel for the accused Schloss respectfully submits that the song is fanciful and is merely a fictional, imaginative concoction. It in no way reflects reality and must not be considered to be an admission that Lennox Schloss participated in the murders of Watson and Lewis.
In making your assessment of the evidentiary value of this song, you must not view this song or the intercept in isolation. You must assess it in the context of all of the other evidence admissible for or against Lennox Schloss… So do not consider the song in isolation. Consider it in the context of all of the other evidence in this case. In the end, the Crown must satisfy you to find as fact that the song constitutes an implicit admission by Lennox Schloss that he participated in the murders of Paul Watson and Michael Lewis.
223In the light of this careful instruction, we are satisfied that this song would not have been given undue weight by the jury. We therefore dismiss this ground of appeal.
VI. Failure to Leave a Critical Finding of Fact with the Jury
224The appellant Schloss argues that the trial judge removed a critical factual issue from the jury’s consideration by instructing them that there were four people involved in the crimes even though the evidence was not decisive as to whether there was a fourth person, the driver of the getaway van, or whether one of the three shooters was also the driver. Schloss contends that the issue of whether there were three or four participants was “of monumental importance” to his defence. If only three men were involved in the crimes, he says the Crown’s case against him was weakened because, unlike Reid and Davis, he was not connected by the evidence to any particular firearm.
225In closing argument, counsel for Schloss had acknowledged that “four might have been involved”, but reminded the jury that “three culprits at most were ever seen, and even if there’s four…”
226In his objections to the charge, Schloss’ counsel referred to what he called the “presumption” in the charge that there were three shooters and one getaway driver. He then commented to the trial judge:
Well, it seems the way it was put to the jury is that is something they can find. Yes, it is something they can find, but they have to find it because there is evidence that something might lead some of them, in fact all of them, that there were only three of them at the scene both doing the shooting and doing the driving.
The following brief exchange occurred:
Trial Judge: Okay, I’m not going to go there.
Defence counsel: Very good.
227We decline to interfere with the trial judge’s decision not to charge the jury on this factual issue. There was ample eyewitness evidence supporting the Crown theory of three shooters and a getaway driver. Defence counsel were not strenuously arguing otherwise. Indeed, counsel for Hamilton acknowledged in closing: “So while the evidence is not conclusive on that point, it sort of makes sense that there might have been a getaway driver” in addition to the three shooters. Counsel for Schloss in recapping his position did not even suggest to the jury that there were only three participants. Moreover, his objection to this aspect of the charge can hardly be said to have been strenuous. Indeed, defence counsel’s treatment of the three participant issue is not in keeping with appeal counsel’s suggestion that it was of “monumental importance” to Schloss’ defence.
228Moreover, we do not accept the argument that Schloss’ defence was undermined by the so-called “presumption” in the charge that four men were involved. Defence counsel’s strongest argument on behalf of Schloss was that he was not involved in the murders because the cell phone evidence indicated that he was not with Hamilton shortly before or shortly after the shootings, and that Hamilton appeared to have been with Webb shortly after the murders. Schloss pointed to Webb as the fourth participant. In other words, the cogency of Schloss’ defence did not turn on whether there were three or four participants in the shootings.
229We thus do not give effect to this ground of appeal.
VII. Three Grounds of Appeal Related to the Cell Phone Evidence
Introduction
230Each of the four appellants had a cell phone. The cell phones of three of the appellants – Hamilton, Schloss and Davis – registered incoming or outgoing calls at a cell phone tower in the vicinity of the murder scene around the time the shootings occurred.
231At trial, the Crown called three “cell phone witnesses”, representatives of the carriers Telus Mobility, Rogers Wireless, and Bell Mobility. These witnesses testified about three matters germane to this appeal: the rules governing the location of a cell phone in relation to a cell phone tower; the times and towers at which the cell phones of each of the appellants registered; and the extent of the synchronization between the times used by the cell phone carriers and the 911 system.
232After these three witnesses testified, the Crown called a police witness, who, with the aid of a PowerPoint presentation, collated and summarized the cell phone location evidence for the jury.
233This cell phone evidence played a prominent role at the trial, where identity was the central issue. The Crown relied on the cell phone evidence as a compelling piece of circumstantial evidence showing that the appellants were together near the scene of the murders minutes before and minutes after the shootings took place. Hamilton, and to a lesser extent Davis, also relied on the cell phone evidence to show that neither was close to the murder scene when Watson and Lewis were murdered and Medder was wounded, and thus were innocent of the charges against them.
Grounds of Appeal Related to the Cell Phone Evidence
234The appellants Schloss, Davis and Reid raise the following ground of appeal concerning the cell phone evidence:
- The trial judge erred by admitting the evidence of three Crown witnesses concerning the location of cell phones without first conducting a voir dire on its admissibility.
235Hamilton, on the other hand, does not object to the admissibility of the cell phone evidence. Indeed, he relies on this evidence to establish his alibi. His argument focuses on the trial judge’s instructions to the jury. He puts forward two grounds of appeal:
The trial judge misdirected the jury on the applicability of the exceptions to the general rule that a cell phone ordinarily registers at the nearest cell phone tower.
The trial judge misdirected the jury on the lack of synchronization between the Telus clock and the 911 clock.
236Before considering these grounds of appeal, we briefly outline the important cell phone evidence.
The Cell Phone Evidence
(i) The “general rule” and its exceptions
237The Crown called Michael Rickard, an investigator in the security department of Bell Canada, Salvatore Iaccio, a senior analyst with Telus Mobility, and Cindy Hopper, manager of law enforcement support for the fraud and security department of Rogers.
238All three witnesses testified that the relationship between a cell phone tower and the location of a cell phone is governed by a general rule: a call to or from a cell phone will usually register at the tower closest to that cell phone. The basis of the general rule is that a cell phone will register at the tower with the strongest signal, which is usually, though not always, the closest tower.
239The witnesses also testified that the general rule is subject to certain exceptions, including that a cell phone will not register at the closest tower if: (1) the closest tower is at capacity; (2) there is a body of water between the cell phone and the closest tower; and (3) there is a large obstruction (for example a multi-storey building) between the cell phone and the closest tower, and an unobstructed line of sight or flat area between the cell phone and a more distant tower. Hamilton maintains that this third exception is important to his appeal.
240In brief then, it is possible that a cell phone will not register at the nearest tower if a more distant tower gives out a stronger signal or if any of the exceptions apply. Thus, though cell phone records assist in determining the approximate location of a particular cell phone at a particular time, these records reflect probabilities, not certainties.
(ii) The cell phone records of the appellants around the time of the shootings
241Hamilton’s and Schloss’ cell phone carrier was Telus Mobility. Davis’ cell phone carrier was Rogers Wireless. Reid’s cell phone carrier was Bell Mobility. Figure 1 depicts the murder scene and the surrounding area, the location of the cell phone towers of each of the three carriers within that area, the times close to the shootings at which Hamilton’s, Schloss’ and Davis’ cell phones registered, and the tower at which each call registered (Reid’s cell phone did not register at any time close to the shootings).
Figure 1 - Towers at which each appellant’s cell phone registered around the time of the murders
242We summarize Figure 1 as follows. The shootings took place at 7 Flemington Road, near the Allen Road, north of Lawrence Avenue West. There were five Telus towers in the area bounded by Eglinton Avenue West and just north of Highway 401, and by Dufferin Street and Bathurst Street. There were two Rogers towers and two Bell towers in that area.
(a) The 911 calls
243The first 911 call reporting the shootings was made by Michael Lewis’ brother and was received at 9:17:55 p.m. on July 24, 2001. A second 911 call reporting the shootings, by Ms. Hiralal, was received at 9:19:40 p.m.
(b) The appellants made no calls at the time of the shootings
244Hamilton, Schloss and Davis used their cell phones extensively throughout the day of the murders. However, none of them made a call between 9:12 and 9:19 p.m. that night.
(c) Hamilton’s cell phone
245At 9:11:21 p.m., Hamilton received a call from Schloss. Hamilton’s phone registered at the Telus tower at 3050 Dufferin Street, just south-west of the scene of the murders and one of the two Telus towers closest to the scene. Hamilton’s cell phone then registered five times shortly after the first 911 call. The first of these five calls registered 50 seconds after the first 911 call. All five calls registered at the Telus tower at 1463 Eglinton Avenue West, which was the Telus tower fifth closest to the murder scene and 3.6 kilometres away from it. Hamilton’s alibi depended on this cell phone evidence.
(d) Schloss’ cell phone
246At 9:11:16 p.m. Schloss’ cell phone registered his outgoing call to Hamilton. That call, too, registered at the Telus tower at 3050 Dufferin Street. Within two minutes of the first 911 call, Schloss’ cell phone registered an outgoing call to Hamilton at the Telus tower at 55 Ameer Avenue, the other Telus tower closest to the murder scene.
(e) Davis’ cell phone
247Within the two and a half minutes before the first 911 call, Davis’ cell phone registered at the Rogers tower at 25 Elway Court, which was the Rogers tower closest to the murder scene and just south-west of it. About two minutes after the first 911 call, Davis’ cell phone registered at the other Rogers tower, at 3450 Dufferin Street, near the Yorkdale Mall and just north of the murder scene.
(iii) Evidence on synchronization
248The evidence on synchronization was of two sorts: the extent of the synchronization between the 911 clock and the clocks of the three cell phone carriers, and the extent of the synchronization between the clocks of the three carriers.
249On the question of synchronization between the 911 clock and the clocks of the carriers, Mr. Iaccio, the Telus representative, testified that the Telus clock and the 911 clock were not synchronized. Although he could not say how the Telus clock was set, he said that the times between it and the 911 clock “rarely ever” matched.
250Indeed, Mr. Iaccio testified that the two clocks could be out of synchronization by as much as three minutes, although the normal difference would be considerably less. The following is the relevant portion of Mr. Iaccio’s testimony, which was adduced in cross-examination by counsel for Schloss and by counsel for Davis:
Q. Your phone system. Now, you’re very careful to keep track of times, etc., so you make sure that people get billed properly. Right?
A. Correct.
Q. One of the things about your time system is that it’s not synchronized with 911, is it?
A. No, it’s not.
Q. So if we have a time up there of a 911 call which we’ve seen on the slide many times now, that doesn’t come from your company. Right?
A. No.
Q. And when we see times of phone calls from Telus Mobility in and around the 911 call, you have no idea whether or not those times are accurate relative to the 911 call right?
A. Correct.
Q. Can you explain to the jury why that is? Why they are on a different clock?
THE COURT: Are they? That’s the question
Q. Yeah, they are, aren’t they?
A. I don’t know what 911 uses.
Q. You’re not synchronized with 911 and you know that as a fact.
A. Yes.
Q. Because you told that to Detective Carter before.
A. Correct.
Q. So can you explain to the jury what it is you know about this discrepancy?
A. In terms of how our phone – our network is not synched with 911?
Q. Yes, sir?
A. I guess –
THE COURT: How do you set your clock? That’s what he’s asking.
THE WITNESS: Well, uh, I’m not too certain how we, uh, set our clock. Uh, I believe it’s every 10 or 20 minutes our network, uh, cross-references with a satellite and synchs the time with our – the entire network with that satellite, but I do not know what – where the source of that time is for the satellite.
Q. Okay.
A. So if I were to look at my cell phone now, the time on my phone is not gonna be the same as 911 and I don’t know where the 911 call centres receive or synch their time or how often they check it or anything like that.
Q. So at any particular moment in time, let’s just say 8 p.m., okay, at 8 p.m. the 911 clock would say 8 p.m. and your clock would say 7:57.
A. Sure.
Q. Or 8:03.
A. Yes.
Q. It could be off as much as three minutes?
A. Sure. Actually, yes, three minutes is fair.
Q. It could be off by more than three minutes.
A. I can’t recall if I’ve ever seen it being more than three minutes, but I wouldn’t be surprised if I did see it more than three minutes.
Q. You said that it could be out by as much as three minutes or more. Right?
A. Yes.
Q. And you’re seen that repeatedly in your experience when asked to locate – asked to locate Telus customers who have called 911.
A. Correct.
Q. Your times of your Telus customers are rarely ever synchronized with 911 time.
A. Exactly.
251This lack of synchronization between the Telus clock and the 911 clock became an issue at trial and on appeal, and it is the focal point of Hamilton’s fresh evidence application.
252Ms. Hopper testified about the Rogers clock and her evidence on synchronization was similar to that of Mr. Iaccio. She testified that the Rogers clock could vary by as much as two minutes from the 911 clock.
253On the other hand, Mr. Rickard of Bell Mobility testified that he had never seen the 911 times and the Bell Mobility times out of synch. He said that the Bell Mobility clock was synchronized with the Atomic Clock in Ottawa, and though he did not know what the 911 clock was synchronized with, in his long experience he had never seen an instance where the 911 and Bell Mobility times did not coincide.
254The other sort of synchronization evidence led at trial concerned the variances of times between the clocks of the three carriers. That evidence came mainly from the cell phone records of Bell Mobility, Telus and Rogers, which were filed as exhibits. The records showed that there was never a discrepancy between the times recorded by the three carriers that approached three minutes on the day of the shootings. Rather, the discrepancy was almost invariably in the range of 10 to 20 seconds, and in no case more than 30 seconds.
255We now consider the three grounds of appeal concerning the cell phone evidence.
1. Did the trial judge err in admitting the evidence concerning the location of cell phones?
256The appellants Schloss, Davis and Reid submit that the cell phone evidence should not have been admitted. They contend that this evidence, especially the evidence about the general rule and its exceptions, is opinion evidence, which can only be given by a qualified expert after holding a voir dire. The trial judge did not hold a voir dire and these appellants contend that as neither Mr. Rickard, Mr. Iaccio nor Ms. Hopper was an engineer, none of them was qualified to give this evidence.
257In response, the Crown submits that these appellants made a deliberate and tactical decision not to object in any meaningful way to the admissibility of the cell phone location evidence. The Crown says that it is now too late for the appellants to raise this issue, and accordingly this court should not entertain their objections. Alternatively, the Crown submits that the cell phone location evidence was properly admissible either because it was factual evidence, not opinion evidence, or, if opinion evidence, because it met the criteria for admissibility.
258We do not accept the appellants’ submission for two reasons. First, we agree with the Crown that these appellants tactically and deliberately chose not to seriously contest the admissibility of this cell phone evidence. Because they pursued this strategy at trial, we are not inclined to allow them to change course and now on appeal object to the admissibility of this evidence.
259Second, the evidence given by the three employees of the carrier companies was not opinion evidence but factual evidence, which they were qualified to give because of their knowledge, observations and experience. Moreover, their evidence was reliable, probative and understandable. It was therefore properly admissible.
(i) The appellants’ tactical decision ought not to be revisited on appeal
260Before discussing the position the appellants took at trial on the admissibility of the cell phone evidence, we make two preliminary points. First, this evidence did not come as any surprise to the appellants. They knew full well that this cell phone evidence was going to go before the jury because it was highly probative of the central issue in the case, the identity of the perpetrators. The appellants also knew what the employees of the carrier companies would say – a cell phone is “likely” going to register at the closest tower. The appellants knew all this because the Crown had called cell phone evidence at the preliminary inquiry, and it had led that evidence through a qualified engineer, Mr. Wang. Moreover, less than two months earlier, in a case called R. v. Zwezdaryk, [2004] O.J. No. 6137 (S.C.J.), Mr. Wang had given similar evidence concerning the location of cell phones and his testimony was ruled admissible.
261Second, each of the appellants had his own tactical reasons for wanting the cell phone evidence before the jury. Hamilton, whose position we will discuss in the next section of these reasons, most obviously did. As we have said, he relied on this evidence to give him an alibi.
262Davis, too, relied on this evidence to give him an alibi, and to point the finger at the alternate suspect, Webb. Davis’ alibi depended on the evidence of some of the eyewitnesses, who testified that the perpetrators remained at the scene for between five to eight minutes after the shootings. If the jury believed this evidence, then Davis could not have been at the scene because his cell phone registered some distance away at the Rogers tower near Yorkdale Mall within just over two minutes after the first 911 call. Davis also pointed to the cell phone records of Webb. His cell phone registered at the Bell Mobility tower at 145 Elm Ridge Drive, directly south of the murder scene, three times within the first five and a half minutes after the first 911 call.
263Reid, too, relied on the cell phone evidence because his phone was not used within a reasonable timeframe before or after the murders. The Crown, therefore, could not place Reid at the murder scene through the cell phone evidence. Reid also relied on the cell phone evidence to discredit Coward’s testimony, and to give him an alibi for the jewellery store and Falstaff incidents.
264Schloss’ position was more difficult. On its face, the cell phone evidence against him was incriminating. It placed him near the scene of the murders shortly before and after the shootings occurred. However, by not objecting to the qualifications of the employees of the carriers, and especially the qualifications of Mr. Iaccio, the employee of Schloss’ own carrier, Telus Mobility, Schloss gained a tactical advantage. He was able to argue to the jury that Mr. Iaccio was neither an engineer nor qualified as an expert and therefore his evidence ought to be disregarded or at least discounted.
265We now turn to the position taken by the defence when the Crown led the cell phone location evidence, first through Mr. Rickard, then Mr. Iaccio and finally Ms. Hopper. This evidence (including the PowerPoint presentation that accompanied it) took seven days. Yet at no time in the seven days did defence counsel ask for a voir dire. And they repeatedly turned down the trial judge’s invitation to cross-examine the three witnesses on their qualifications. They advanced but two mild objections, one when Mr. Rickard testified and the other when Mr. Iaccio testified.
266Mr. Rickard said that he had testified in court over 50 times previously. Early in his evidence, he explained the general rule. Then counsel for Davis asked whether Mr. Rickard was being put forward as an expert, and if so, said that he ought to be able to question him on his expertise. These comments led to an exchange between the trial judge, Crown counsel and counsel for Davis in the absence of the jury:
[Counsel for Davis]: How are we going to be able to ask any specific questions about this when it’s just, you know, what he’s been told and he doesn’t have any real knowledge about, you know what is behind the observation?
The Court: I don’t know that an engineer can tell you anymore differently. Right? He’s going to give the same evidence. Are you proposing to call anybody else or not?
[Crown counsel]: No, my lord. This witness testified at length at the preliminary inquiry, so by reading the preliminary inquiry transcript, [counsel] and everyone else will know exactly what he’s going to say. There are no surprises here in terms of his expertise. The Crown’s position is that we are dealing with probabilities here that to be able to tell the time you don’t have to know how the clock was made.
And his expertise is based on how the system works. That’s how they make their money. That’s how they bill people. If they didn’t go on what his knowledge was, the companies would go broke.
The Court: Anybody want to make any further submissions?
[Counsel for Davis]: No thank you sir.
The Court: Okay. He’ll be taken as qualified to give opinion evidence with respect to the workings of the cell phone system for Bell Mobility and the location of the towers in relationship to the signals either received or sent by telephone. So I’ll let him explore that area and the interpretation of the raw data documents.
267As is evident, this exchange petered out quickly because counsel for Davis did not press his objection and no other counsel took up the matter. The trial judge held that Mr. Rickard was qualified to give opinion evidence. No counsel disagreed.
268Mr. Iaccio then gave evidence. He said that he had testified many times before, including at the preliminary inquiry in this case. The Crown asked that Mr. Iaccio be qualified to give expert opinion evidence on the location of cellular phones. Only counsel for Schloss raised a concern. His concern was narrow. He was content that Mr. Iaccio give the evidence but he did not want him referred to as an expert:
The Court: Okay, Mr. Rickard, the last witness, I don’t think gave opinion evidence, quite frankly.
Counsel for Schloss: That’s right.
The Court: Because he was, in fact, giving the general rule, the exceptions to the rule, and he did not as some people use the word opine as to where the cellular phone was at the particular time.
The Court: He simply said the records indicate tower 131, section S (sic) and that’s located. He gave us an address but he didn’t say, in my opinion the phone was in this particular location. So are you going there with this witness?
[Crown counsel]: I’m not going any further than I did with – than Mr. Rickard did with this witness.
Counsel for Schloss: Well, then, he doesn’t need to be called an expert in the location of cellular phones. It’s just he understands what the data means and he’s going to relate what the data is to the jury.
The Court: I want him to interpret the data.
But I gather the Crown, subject to your comments, it doesn’t sound like you have an objection, but I don’t think he’s going to give an opinion or proffer an opinion with respect to the location of the particular phone. Simply what the records indicate.
Counsel for Schloss: Right. Well, then, my objection is that he should not be referred to before the jury as an expert in the location of phones. That’s all. I didn’t mean to be difficult.
The Court:… I don’t think he’s going to offer an opinion so I tend to agree with counsel for Schloss.
269As we have already said, counsel for Schloss’ decision not to object to the evidence given by Mr. Iaccio was tactical. He wanted to be able to argue to the jury – as he did – that Mr. Iaccio was not an expert. And, he did not want to push the Crown into calling Mr. Wang, who would have given essentially the same evidence as Mr. Iaccio, but with the added credibility given by his engineering degree. We note that the trial judge gave effect to the position of Schloss’ counsel, because, when referring to Mr. Iaccio, he did not call him an expert.
270Finally Ms. Hopper testified, as she had done many times over the previous 15 years. No counsel objected to her evidence or her qualifications.
271As this brief review demonstrates, none of the appellants mounted any serious objection to the admissibility of the cell phone evidence or to its being led through the testimony of the three employees of the cellular phone carriers without first holding a voir dire. Each appellant had his own tactical reasons for wanting this evidence in or for not wanting the Crown to lead the evidence through a qualified engineer such as Mr. Wang. Having deliberately pursued this strategy at trial, it is now too late on appeal for Schloss, Davis and Reid to object to the admissibility of the cell phone evidence on the basis that the trial judge did not hold a voir dire.
272This alone is sufficient to dispose of this ground of appeal. However, we are also satisfied that the cell phone evidence given by the employees of the carriers was factual evidence, which they were qualified to testify about.
(ii) The cell phone evidence was admissible as factual evidence and was not opinion evidence
273The Crown did not ask for a voir dire, the defence did not seek one, and the trial judge did not hold one. Now on appeal, Schloss, Davis and Reid argue that Mr. Rickard, Mr. Iaccio and Ms. Hopper gave opinion evidence, and if a proper voir dire were held, they would not have met the criteria for the admissibility of expert opinion evidence set out by Sopinka J. in R. v. Mohan, 1994 80 (SCC), [1994] 2 S.C.R. 9, and more recently by Doherty J.A. of this court in R. v. Abbey, 2009 ONCA 624. In particular, they contend that in testifying about the general rule and its exceptions, the employees were giving a technical, scientific opinion that they were not qualified to give. In short, they could not satisfy the second Mohan criterion: the witness must be qualified to give the opinion.
274Whether testimony about the general rule and its exceptions is factual evidence, as the Crown maintains, or opinion evidence, has been a matter of debate. Case law on the question has gone both ways. The two sides of the debate are reflected in the Manitoba decision of R. v. Korski, [2007] M.J. No. 275 (Q.B.), affirmed 2009 MBCA 37, and the Ontario cases of Zwezdaryk, R. v. McFarlane, [2006] O.J. No. 4858 (S.C.J.) and R. v. Spackman, [2009] O.J. No. 1066 (S.C.J.).
275In Korski, Beard J. concluded at paras. 11-12 that “evidence regarding the operation of the cellular telephone network and explaining the billing record information” was factual evidence. Her conclusion was upheld on appeal. In Zwezdaryk, on the other hand, Clark J., in thorough reasons, held that evidence about the operation of the cellular telephone system was opinion evidence, but admissible through the testimony of Mr. Wang. In the later case of McFarlane, Clark J. refused to qualify Mr. Rickard as an expert in the field of cellular telephone communications, in part because he was not an engineer. In Spackman, Trafford J. refused to qualify a Rogers Wireless employee as an expert on the location of cell phones in relation to cell towers, in part because the employee was not an engineer, and in part because the cell tower configuration data for Fido phone towers, which were the pertinent towers in that case, was no longer available and so the employee’s evidence could not be challenged effectively by the defence.
276We accept that if the cell phone location evidence given by Mr. Rickard, Mr. Iaccio and Ms. Hopper was opinion evidence, then the trial judge ought to have conducted a voir dire. And if it was opinion evidence, the trial judge likely overstepped the bounds by ruling that Mr. Rickard was an expert qualified to give cell phone location evidence. But in fairness to the trial judge, as we have said, no counsel sought a voir dire or seriously objected to Mr. Rickard’s evidence.
277However, 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.
278It 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.).
279Even 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.
280Importantly, 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.
281The Crown in closing submissions to the jury made it clear that the cell phone witnesses were not giving evidence of the precise location of a cell phone:
The evidence makes it clear, however, that there are significant limitations on the ability of records to precisely identify a phone’s location. In substance, where the records indicate that a phone is registering on a particular cell tower, there is a probability but not a certainty that the phone is somewhere within the expected coverage area of the cell site. The general rule from all of – that we heard from Mike Rickard who represented Bell Mobility, Sal Iaccio who represented Telus Mobility, and Ms. Hopper who represented Rogers AT&T was that the phone registers on the tower with the strongest signal and that usually is the closest tower, but there are definite exceptions to that general rule, and in your experience and your common sense, general rules always have exceptions.
282Additionally, the jury would have had no difficulty in understanding the cell phone location evidence, especially after it was summarized in a PowerPoint presentation. That presentation undoubtedly clarified the evidence and put to rest any possibility the jury might have been confused by it. The presentation of the cell phone evidence did take a fair amount of time, seven days. But in the context of a four-month trial, this was not an overly long amount of time.
283Finally, the probative value of this evidence strongly favoured its admission. In a case where identity was the key issue at trial, the cell phone evidence was highly probative circumstantial evidence of the general location of three of the appellants, Hamilton, Schloss and Davis, at the critical times.
284Accordingly, we do not give effect to the appellants’ challenge to the admissibility of the cell phone evidence.
Hamilton’s Grounds of Appeal Concerning the Cell Phone Evidence
Overview
285Unlike the other appellants, Hamilton does not challenge the admissibility of the cell phone evidence. Instead, he relies on it to establish his alibi. He points to an incoming call from his friend Ben from Jamaica right after the murders occurred. This call registered a mere 50 seconds after the first 911 call, and it registered at a Telus tower at 1463 Eglinton Avenue West (near Marlee Avenue), a tower that was farther away from the murder scene than four other Telus towers in the area. Hamilton claims that when he received this call he was driving a van with Patrick Webb and two others in it along Eglinton Avenue West near Oakwood Avenue.
286Hamilton points to three other facts to buttress his alibi. First, during his initial interview with the police, he told them to check his phone records as they would show he was innocent. Second, he told the police that he was with Patrick Webb at the time of the shootings and Webb’s cell phone registered within minutes of the first 911 call at a Bell Mobility tower at 145 Elm Ridge Drive, near Eglinton Avenue West. Third, Hamilton and Schloss spoke to each other about two minutes after the first 911 call, and their phones registered at different Telus towers, indicating that they were not together.
287To disprove Hamilton’s alibi, the Crown relied on there being a lapse of time between the shootings and the 911 call, on his ability to get very quickly from the murder scene to the vicinity of the Telus tower at 1463 Eglinton Avenue West by driving at a high rate of speed, and on the lack of synchronization between the Telus clock and the 911 clock. The Crown theorized that Hamilton joined the other appellants right before the shootings and separated from them right after. The Crown then maintained that when Hamilton received a call on his cell phone 50 seconds after the first 911 call, he was speeding away from the murder scene and had entered the call area of the Telus tower at 1463 Eglinton Avenue West.
288In essence, the strength of Hamilton’s alibi turns on four variables: the lapse of time between the shootings and the first 911 call; the getaway route of the murderers and the amount of time needed to drive toward 1463 Eglinton Avenue West; the application of the general rule and its exceptions; and the extent to which the Telus clock and the 911 clock were synchronized. The third and fourth variables are the subject of Hamilton’s submission that the trial judge misdirected the jury on the cell phone evidence.
289On the first variable, the initial 911 call was made by Milton Lewis, the brother of one of the victims. He testified that he was on the phone in his mother’s apartment on the fourth floor of 7 Flemington Road when he heard the shooting and looked outside. He saw a black man standing over his brother, Michael, and firing a gun at him. Milton Lewis yelled “yo” and the shooter looked up and ran. He told his mother what had happened and then got back on the phone and told the person he was speaking to what had happened. Only then did he call 911.
290In the course of his examination-in-chief and cross-examination, Milton Lewis gave several different estimates of how long he took to call 911 after he saw his brother shot. In his examination-in-chief, he first said five to eight minutes, and then “maybe a minute or two.” When cross-examined by counsel for Hamilton, he testified that it was “a minute, I guess … maybe a minute.” Later in the cross-examination, a test was conducted in the courtroom, and Mr. Lewis estimated the time as between seven to nine seconds after the shooter jumped over a railing and went out of sight. Finally when cross-examined by counsel for Davis, he said that because he had gone through a traumatic experience he was not keeping track of time: “I don’t know if it was two minutes, three minutes.” As this brief review shows, Milton Lewis was not consistent about how much time passed between the shooting and his 911 call.
291On a second variable – the getaway route and the time needed to drive toward the Telus tower at 1463 Eglinton Avenue West – Hamilton asked the jury to assume that the getaway car drove from the murder scene going east on Old Meadow Lane, north on Replin Road, east to Varna Drive, south to Lawrence Avenue West, west to the Allen Road, and then south on the Allen Road to Eglinton Avenue West. Hamilton referred to evidence he led from an articling student who had done a test drive of this route. He submitted to the jury in closing argument that it would take “a considerable period of time” to get from 7 Flemington to the area where a cell phone would register at the 1463 Eglinton Avenue West tower.
292The articling student’s actual testimony was that it took him between one minute and 47 seconds and one minute and 50 seconds to get from the murder scene to the intersection of Lawrence Avenue West and the Allen Road, driving mostly at the speed limit. Of course it was open to the jury to conclude that the murderers followed a different route than the student took, or that they drove well in excess of the speed limit.
293We now address Hamilton’s two grounds of appeal.
1. Did the trial judge misdirect the jury on the application of the exceptions to the general rule and the evidence in support of these exceptions?
294Hamilton submits that the trial judge’s instructions on the cell phone evidence unfairly undermined his alibi defence. The trial judge referred to the cell phone evidence many times in his charge. The following passage captures the essence of his instructions:
In assessing whether or not the Crown has proven beyond a reasonable doubt the identity of a particular accused as a participant in the shootings either as a gunman or driver, it is important that you carefully assess the cell phone records to assist you to determine the location of the four accused at relevant times. However, because the phone records do not reflect certainty but merely probability, admit of many exceptions to the general rule that the call registers at the nearest cell tower and are not synchronized as to times, it is also important to consider other evidence including evidence of motive, association, opportunity and after-the-fact conduct, including implicit admissions of participation in determining whether or not the Crown has proven beyond a reasonable doubt the identity of the particular accused as having participated either as a shooter or driver in the double murders and attempted murder at 7 Flemington Road on Tuesday, July 24th, 2001, at approximately 9:17 that evening.
295Hamilton contends that by this instruction the trial judge effectively told the jury they could not rely on the general rule (that a cell phone ordinarily registers at the closest tower) and suggested that a cell phone could arbitrarily register at a more distant tower. He says that where a cell phone registers is not a matter of chance: there is a general rule and recognized exceptions.
296And, Hamilton says none of the exceptions apply. Indeed, if anything, the geography of the area reinforces his position that the general rule governed the location of his cell phone. The evidence at trial established that there were no obstructions between the scene of the shootings and three of the four closest Telus towers, and only one possible obstruction – a tall bank building – between the murder scene and the fourth Telus tower closest to the scene. Yet there was a significant obstruction – a group of tall buildings – in the path between the scene of the murders and the tower at 1463 Eglinton Avenue West, the tower where Hamilton’s incoming call registered less than a minute after the first 911 call. Nonetheless, despite defence counsel’s objection, the trial judge refused to charge the jury on the applicability of the exceptions to the general rule or on the presence of the tall buildings between 7 Flemington Road and 1463 Eglinton Avenue West.
297We do not accept Hamilton’s contention. We acknowledge that in his charge, the trial judge did not refer to the group of tall buildings. However, as we will discuss shortly, the trial judge expressly brought to the jury’s attention the absence of any major obstructions between 7 Flemington Road and the other four closer Telus towers. Moreover, the law does not require the trial judge to review for the jury every fact on which the defence relies. What the law does require the trial judge to do is instruct the jurors on the evidence in a way that they can fairly appreciate the issues and the defence presented. See R. v. Daley (2007), 2007 SCC 53, 226 C.C.C. (3d) 1 (S.C.C.), at para. 57. We are satisfied that the trial judge did so.
298In the passage Hamilton impugns, the trial judge correctly stated the general rule. He also correctly stated that the general rule was subject to exceptions. Although he did not spell out these exceptions, the jury would have been well aware of them from the evidence and the addresses of counsel.
299Moreover, the trial judge was right to say that the cell phone evidence reflected probability, not certainty, and thus the jury should also consider the other evidence implicating the appellants. That evidence included Hamilton’s “implicit admissions” of guilt. Most important for this ground of appeal, the trial judge spelled out fairly and in detail for the jury Hamilton’s alibi defence:
The timing of the cell phone records prove that Anthony Hamilton was not in the immediate area of 7 Flemington Road at the time of the murders. …
Hamilton’s cell phone registered at 1463 Eglinton Avenue West near the Telus site at Allen Road at 9:18:45 p.m. However, there were four other Telus sites closer to 7 Flemington than the one on Eglinton Avenue West. At 9:18:45, about one minute after the shootings, Hamilton’s cell phone, had he been in the murder van, would still likely not have registered at 1463 Eglinton West. It takes time to get there from 3 Old Meadow Lane to the area of Eglinton Avenue West and the Allen Expressway. There are traffic lights on the way. It takes at least two minutes to drive from 3 Old Meadow Lane to Lawrence Avenue West and the Allen Expressway. The Telus cell towers at 55 Ameer, at 3000 Bathurst and at 3050 Dufferin all would have been closer to 7 Flemington.
Following the 911 call at 9:17:55, Hamilton had calls at 9:18:45 and 9:20:01. At that time he had a call from Schloss who was at 55 Ameer, and at 9:25 p.m. and at 9:29 p.m. Hamilton also had calls. The 9:20:01 p.m. call was, as I have stated, from Lennox Schloss. At 9:11:16 p.m., at an earlier time, Lennox Schloss had phoned Anthony Hamilton when Schloss was nearer the 350 (sic) Dufferin tower. Obviously, they were not in the same vehicle at that time, that time being 9:11:16. Likewise they were not in the same vehicle at 9:20:01 p.m. when Schloss later phoned Hamilton.
The 9:18:45 p.m. call does not indicate – this is the one registered at 1463 Eglinton Avenue West, shortly after the shootings – the location of the other party to the call, to the call with Hamilton. The Telus representative indicated that it could have been a long distance call. Hamilton told the police that at that time he was involved in a long distance call from Jamaica with Ben. According to defence counsel, the cell phone records indicate that it would have been a physical impossibility for Hamilton to have participated in the murders at 7 Flemington at 9:17. Keep in mind that, for the most part, there are no high rise buildings to obstruct the phone calls to the closer Telus cell phone sites.
300As this passage reveals, the trial judge not only told the jury that there were four Telus towers closer to the murder scene than the Telus tower at 1463 Eglinton Avenue West, but as well that there were, for the most part, no high buildings to obstruct calls to the closer towers.
301From the trial judge’s general instructions on the cell phone evidence and his instructions on Hamilton’s alibi, we are satisfied the jury would have appreciated that right after the shootings Hamilton’s cell phone did not register at any of the Telus towers closest to the murder scene. They would have also appreciated that Hamilton’s cell phone could have registered at any of the closer Telus towers if he were in the vicinity of the murder scene at the time of his incoming call at 9:18:45 p.m., and that the exception to the general rule for obstructions did not apply to the four closest Telus towers, but could apply to the tower where Hamilton’s phone registered.
302In summary, the trial judge’s instructions on the cell phone evidence did not undermine Hamilton’s alibi defence. In our view, the trial judge presented Hamilton’s defence fairly. We therefore decline to give effect to this ground of appeal.
2. Did the trial judge misdirect the jury on the lack of synchronization between the Telus clock and the 911 clock?
303Hamilton submits that the trial judge further compromised his position by repeatedly instructing the jury that the Telus clock and the 911 clock were not synchronized and could be out of synch by as many as three minutes. For example, Hamilton complains about the following passage from the trial judge’s summary of the Crown’s case:
The Telus representative testified that he could not say with certainty where the cell phone would register if the caller was in the general area of 7 Flemington around the time of the murders. Furthermore, the Telus times are not synchronized with 911 times. Hamilton’s phone was in the area of 1620 Lawrence just before the murders and south of 7 Flemington after the murders. 7 Flemington is somewhat north of Lawrence just east of the Allen Expressway. Please keep in mind that the Telus times may be off the 911 times by up to three minutes, though it is likely to be far less than that.
304Hamilton argues that the trial judge’s instructions on the lack of synchronization between the Telus clock and the 911 clock gave the jury a false impression that the two clocks were not synchronized around the time of the shootings. According to Hamilton, the trial judge should have told the jury to assume that the two clocks matched on the day of the murders because there was no evidence of any lack of synchronization on that day.
305We do not agree with Hamilton’s argument. The trial judge’s instructions on the lack of synchronization between the Telus clock and the 911 clock reflected the evidence of Telus’ representative Mr. Iaccio, which we referred to earlier in these reasons. And even though the trial judge told the jury that the clocks could be out by as many as three minutes, he also told them that the variance was “likely to be far less than that.” Indeed, that the variance on the day of the murders was far less drew firm support from the evidence of Mr. Rickard that the Bell Mobility and 911 clocks always coincided, combined with the cell phone records, which showed a variance in the clocks used by the three carriers that was almost always less than 20 seconds and never more than 30 seconds. Thus, on the basis of the trial judge’s instructions and the evidence, it was open for the jury to find that on the day of the murders, the Telus clock and the 911 clock were very close to being synchronized, which was Hamilton’s best position.
306The instructions Hamilton sought – to assume the two clocks matched on the day of the murders – would have been contrary to Mr. Iaccio’s uncontradicted evidence that the two clocks rarely match. That instruction would also have prejudiced the Crown’s position.
307We conclude this section of the reasons by noting that the trial judge’s instructions on synchronization had to reflect the competing positions of Hamilton and Schloss. Hamilton sought an instruction that compelled the jury to conclude that the two clocks matched on the day of the murders. Schloss, however, sought exactly the opposite instruction because his cell phone registered at a Telus tower very close to the murder scene both before and right after the first 911 call. Indeed, Schloss’ counsel actively sought an instruction on the lack of synchronization, going as far as asking for a notation to that effect on every page of the paper copy of the PowerPoint presentation. The trial judge declined Schloss’ request, but before the Crown presented its PowerPoint he did instruct the jury that the two clocks were not synchronized. Hamilton’s counsel agreed with this instruction, no doubt because it was faithful to the evidence of Mr. Iaccio.
308For the above reasons, we do not give effect to this ground of appeal. Accordingly, Hamilton’s submission that the trial judge misdirected the jury on the cell phone evidence and by doing so undermined his alibi defence fails.
VIII. Fresh Evidence Application
1. Introduction
309At the conclusion of oral argument on the appeal, Mr. Lockyer, counsel for Hamilton, brought an application for leave to introduce fresh evidence. He asked for an adjournment to bring forward evidence that would show, in his words, that “the times recorded in the records for Lewis’ 911 call at 9:17:55 p.m. and the call received by Hamilton at 9:18:45 p.m. were both accurate within seconds of each other, and were both within seconds of Atomic Time.”
310The panel granted the adjournment request. The argument of the appeal was put over for six months to permit both sides to assemble their materials.
311The fresh evidence consists of nine affidavits – seven filed by Hamilton and two by the Crown – as well as the transcripts of cross-examinations on some of these affidavits. Hamilton’s evidence includes affidavits from employees of Toronto Police Service, Bell Mobility and Telus Mobility and from his counsel at trial. The Crown’s evidence includes an affidavit from Mr. Iaccio, which supplements his evidence at trial. The parties also filed lengthy factums on the application.
312In essence, Hamilton seeks to counter Mr. Iaccio’s trial evidence that the Telus clock and the 911 clock could differ by as much as three minutes. Hamilton submits that the fresh evidence demonstrates the two clocks varied little or not at all on July 24, 2001 and that therefore, based on the timing of the 911 call and the incoming call to Hamilton 50 seconds later, which registered at the Telus tower at 1463 Eglinton Avenue West, he could not have been at the scene of the shootings when they occurred.
2. The Legal Framework for the Application
313Section 683(1) of the Criminal Code gives an appellate court power to admit fresh evidence on appeal “where it considers it in the interests of justice” to do so. As this court said in R. v. Truscott, 2007 ONCA 575, at para. 81:
The “interests of justice” control the admission of all evidence offered on appeal. That phrase signals a broad discretion to admit evidence following a context-sensitive inquiry into the totality of the circumstances.
314The fresh evidence Hamilton seeks to introduce is directed at evidence at trial that may have been material to the jury’s verdict. Fresh evidence of this sort continues to be governed by the test in R. v. Palmer, 1979 8 (SCC), [1980] 1 S.C.R. 759, a test that has been discussed and elaborated on in several recent decisions of this court: see R. v. Maciel, 2007 ONCA 196, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 258; Truscott; R. v. Phillion, 2009 ONCA 202; R. v. Reeve, 2008 ONCA 340; and R. v. Dooley, 2009 ONCA 910, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 83 and [2010] S.C.C.A. No. 179.
315As described in Truscott, at para. 92, under the Palmer test, an appellate court should consider three questions:
Is the evidence admissible under the operative rules of evidence?
Is the evidence sufficiently cogent in that it could reasonably be expected to have affected the verdict?
What is the explanation offered for the failure to adduce the evidence at trial and should that explanation affect the admissibility of the evidence?
316In this case, in respect of the first inquiry, the proposed fresh evidence is admissible under the rules of evidence.
317The third inquiry invites the court to consider whether by due diligence the evidence could have been adduced at trial. However, the due diligence component of the Palmer test is usually applied less strictly in criminal appeals than in civil appeals. In a criminal case, even if the proffered evidence was available and could have been led at trial, when that evidence undermines the reliability of the verdict and the liberty interest of an appellant is at stake, it is not ordinarily in the interests of justice to maintain the verdict simply because an appellant failed to exercise due diligence. In this case, we do not rest our decision on the due diligence component of the Palmer test.
318The present application turns on the cogency inquiry. This inquiry requires an appellate court to answer three further questions (Truscott, at para. 99):
Is the evidence relevant in that it bears upon a decisive or potentially decisive issue at trial?
Is the evidence credible in that it is reasonably capable of belief?
Is the evidence sufficiently probative that when taken with the other evidence adduced at trial, it could reasonably be expected to have affected the result?
319These questions call for a qualitative assessment of Hamilton’s proposed fresh evidence. The probative value of this evidence must be assessed in the context of all the evidence admitted at trial and on appeal. If, in this context, the evidence Hamilton seeks to introduce could reasonably be expected to have changed the result at trial, the evidence ought to be admitted and his convictions set aside. Depending on the cogency of the fresh evidence, the court would then have to determine whether an acquittal should be entered or a new trial ordered: Maciel, at para. 46.
320The Crown accepts that Hamilton’s proposed fresh evidence is relevant to a potentially decisive issue at trial, his alibi. The Crown, however, raises concerns about the credibility of the proposed evidence. We will summarize the proposed evidence later in these reasons. Here, we simply say that we are prepared to accept that the evidence tendered by Hamilton is credible.
321To decide this application, we need only focus on the third question in the cogency inquiry: Is the proposed fresh evidence sufficiently probative that when taken with the other evidence adduced at trial, it could reasonably be expected to have affected the result? In our view, the answer to this question is no. Accordingly, for the reasons that follow, we dismiss the application to introduce fresh evidence.
3. The Context for the Application
322Hamilton’s defence at trial and maintained on appeal was one of alibi. His alibi rested on the cell phone records, especially the timing of the two critical calls at 9:17:55 p.m. and 9:18:45 p.m. on July 24, 2001 and the location of the cell tower at which the second call registered. Hamilton claimed that the timing of these two calls, coupled with the cell phone location evidence indicating that the second call registered at the Telus tower at 1463 Eglinton Avenue West – approximately 3.6 kilometres away from the crime scene – proves that he could not have been at the crime scene when the shootings occurred. For his defence to succeed, it was important to show that on the day of the shootings the 911 clock and the Telus Mobility clock were synchronized exactly or within seconds of each other.
323At trial, however, Salvatore Iaccio, the Telus Mobility representative, testified in cross-examination by counsel for Schloss that the Telus clock was not synchronized with the 911 clock. He agreed with the proposition put to him that the two clocks could be off by as much as three minutes. He also agreed with the suggestion by counsel for Davis that at the time of the 9:18:45 p.m. call that registered at the Telus tower, the 911 clock could have read as late as 9:21:45 p.m., or “possibly” even later. Hamilton contends that Mr. Iaccio’s evidence left a lingering doubt in the jury’s mind about the accuracy of the Telus times. Moreover, he contends that Mr. Iaccio’s evidence received undue attention from Crown counsel and from the trial judge.
324Hamilton points to the Crown’s closing address to the jury in which the jury was urged to find that Hamilton’s alibi was false, in part because the Telus time was not coordinated with the 911 time, and could be off by up to three minutes. And Hamilton also points to the trial judge’s charge in which the jury was told repeatedly that Telus times were not synchronized with 911 times, and especially to his review of the Crown’s position and Schloss’ position that these times at the extreme could show a variance of three minutes.
325Hamilton submits that if the jury had evidence showing that the Telus time and the 911 time varied by a few seconds at most, that evidence taken with the other evidence at trial could reasonably be expected to have affected the jury’s determination. What then did the fresh evidence show?
4. The Fresh Evidence
326The fresh evidence is extensive. The evidence Hamilton relies on broadly falls into two categories: evidence of the recorded times of various cell phone calls; and evidence about the systems used by 911 and the carriers to record the times of calls, and about the accuracy of those systems.
327This evidence came mainly from three witnesses: Karen Dmytryshyn, a civilian member of the Toronto Police Service, who testified about the 911 system; Sean Meisner, a technician at Telus Mobility in 2001 and now a network specialist there, who testified about the Telus system; and David Broad, the manager of wireless network security for Bell Canada Enterprises Inc., who testified about the Bell Mobility system.
328Hamilton then used the evidence of these three witnesses to put forward four methods for showing the accuracy of the Telus times on the day of the shootings: an analysis of the internal synchronization procedures used at Telus Mobility; a comparison of the Telus records and the 911 records for the same calls; a comparison of the Telus records and the records of the other carriers for the same calls, and; a comparison of the records of Telus Mobility and Bell Mobility for a call between Hamilton and Webb that was made in the early morning of July 24, 2001.
329The evidence concerning the time recording systems used by 911 and the carriers is technical and detailed. The comparisons relied on by Hamilton are similarly detailed. We do not think it necessary to recite this detail or the underlying technical descriptions of the systems used by 911 and the cell phone carriers. A summary of what the evidence shows is sufficient to decide this application. In saying that, we do not in any way minimize the efforts of counsel for Hamilton and the Crown in assembling this evidence. Their preparation and presentation of the fresh evidence application was very thorough, competent and helpful to the panel.
330In a nutshell, the fresh evidence shows the following:
911, Telus Mobility and Bell Mobility all synchronized their systems to the Atomic Clock operated by the National Research Council, Canada’s official time keeper.
Toronto Police Service uses two systems to record 911 calls. The systems are synchronized with the Atomic Clock every 24 hours. The discrepancy between the two systems is typically 2 to 4 seconds but variances of up to 8 to 9 seconds have occurred. Generally, however, 911 call times are accurate to within 2 to 4 seconds of Atomic Time.
The Telus clock is synchronized with the Atomic Clock twice a year. According to Mr. Meisner, ordinarily the variance between the two clocks is not more than 15 seconds. However, Mr. Meisner also acknowledged that a variance of 30 seconds or more, while unusual, is not impossible. Indeed, a test he ran on a switch in Montreal produced a 40 second variance between Telus time and Atomic Time.
Bell Mobility times are within 0 – 3 seconds of Atomic Time.
The times of the three carriers were within 21 seconds or less of each other on the day of the homicides.
A comparison between the Telus Mobility and Bell Mobility records for the end time of the call made by Hamilton to Webb at 4:17:30 a.m. on July 24, 2001 showed a discrepancy of 8 seconds (including tear down time).[7]
Mr. Iaccio and Mr. Meisner, both Telus employees, differed in their evidence on the extent of the variance between Telus times and 911 times. Mr. Iaccio continued to maintain that he had compared 911 records and Telus records and had observed time differentials of up to 3 minutes. He had no documents to support his observations. Mr. Meisner said that he “would have a hard time believing” the Telus clock differed from the 911 clock by 3 minutes. However, he had never compared 911 records and Telus records.
331With this brief summary of the fresh evidence, we turn to consider whether it could reasonably be expected to have affected the result at trial.
5. Could the Fresh Evidence Reasonably be Expected to Have Affected the Result at Trial?
332Hamilton submits that the fresh evidence, when taken with the other evidence adduced at trial, could reasonably be expected to have changed the verdict. He contends the fresh evidence shows that Milton Lewis’ 911 call and the incoming call to Hamilton recorded as 50 seconds apart, did occur within 50 seconds of each other, plus or minus a few seconds. Thus, the trial evidence of Mr. Iaccio of a possible three-minute variation is unreliable and not something on which a defence of alibi to a first degree murder charge should have failed.
333To assess this submission, we have considered the fresh evidence and what was before the jury at trial on the degree of synchronization between the 911 clock and the Telus clock, the limitations of the cell phone evidence, as well as the other evidence at trial from which the jury could determine whether Hamilton was a perpetrator of the crimes.
(a) The fresh evidence and the trial evidence on the degree of synchronization between the Telus and 911 times
334Taking Hamilton’s position at its best, which means disregarding Mr. Iaccio’s evidence on the application, the fresh evidence shows that the Telus times and the 911 times could have varied by 15 to 20 seconds, perhaps as much as 30 seconds, on the day of the shootings. If this is a fair distillation of the fresh evidence, and we think it is, then it does not appreciably improve Hamilton’s alibi defence. Essentially, the same evidence on the degree of synchronization between Telus time and 911 time was before the jury.
335It is, of course, true that Mr. Iaccio testified at trial to a lack of synchronization of up to three minutes. However, he did not testify that there was in fact a three-minute variance between the 911 time and the Telus time on the day of the shootings. We think it fanciful that the jury would have relied on a variance of this magnitude to reject Hamilton’s defence of alibi to a first degree murder charge.
336In the light of the trial judge’s instructions, the trial evidence and defence counsel’s powerful closing to the jury, we think it is reasonable to conclude the jury would have based their decision on a much smaller variance, likely in the range of 20 to 30 seconds. We discuss each of these three factors in turn.
337First, although the trial judge referred in his instructions to the evidence that the Telus time could be off by as much as three minutes from the 911 time, he did so in the context of summarizing the position of Schloss, who sought to rely on the three-minute differential, and in summarizing the position of the Crown. Moreover, in the portions of his charge describing the Crown’s position, the trial judge twice indicated to the jury that the time variance was likely significantly less than three minutes:
All carriers may also vary somewhat with 911 times. The extreme has been a three-minute variance, though the normal variance would be considerably less than that.
Please keep in mind that the Telus times may be off the 911 times by up to three minutes, though it is likely to be far less than that. [Emphasis added.]
338Second, as we have outlined earlier in these reasons, the evidence of the Bell Mobility representative, Michael Rickard, combined with the records of the cell phone carriers themselves, showed a discrepancy of no more than 30 seconds. Mr. Rickard, who gave essentially the same evidence as Mr. Broad, testified that 911 time and Bell Mobility time were synchronized to within a few seconds of each other. The phone records of the three carriers showed a discrepancy between them in the range of 15 to 20 seconds for the same call and never more than 30 seconds, in other words, nothing close to a three-minute differential. Putting Mr. Rickard’s evidence together with the phone records yields the undeniable conclusion that the Telus times and the 911 times diverged by no more than 15 to 20 seconds, perhaps 30 seconds at the most, on the day of the shootings. The jury heard Mr. Rickard’s evidence and also had a PowerPoint summary of the phone records, which could be examined and compared to reach this conclusion.
339Finally, in his closing, Hamilton’s trial counsel asked the jury to make this very comparison:
Just before I leave the whole issue of cell phones, there was an issue raised during the course of this trial as to timing and whether the times on the cell phone records can be off and how much they can be off. Mr. Iaccio, on behalf of Telus, testified that he’s heard of cases where they can be off as much as by three minutes. This is a theoretical possibility based on Mr. Iaccio’s testimony. There is no evidence that is the case here. In fact, the evidence suggests otherwise. The reason I say that is that, when you compare by looking at the hard copy of the Power Point presentation a call for example that’s made from a Telus phone to a Bell phone or from a Rogers phone to a Telus or Bell phone, you’ll see that there may be some discrepancy in the timing but in no case is it more than 15 to 20 seconds. So any discrepancy in timing between the various telephone companies, the cell phone service providers, is not in the area of three minutes here. It’s, at best, in the area of 15 to 20 seconds, and you can simply see that by analysing the Power Point… So there isn’t any time discrepancy here.
340Thus, although the fresh evidence may render Mr. Iaccio’s evidence of a possible three-minute variance less concerning from Hamilton’s perspective, it otherwise simply repeats and reinforces the much more minor timing discrepancies evident from the records of the cell phone carriers. The jury had these records and heard extensive argument on them.
(b) Limitations of the cell phone evidence
341However, even if we accept Hamilton’s argument that the fresh evidence shows the time records of 911 and Telus were synchronized exactly or within a few seconds of each other, this evidence could not, as Hamilton asserts, prove the truthfulness of his alibi. The fresh evidence could not do so because it cannot be viewed in isolation. It has to be taken in the context of what may have occurred on the evening of the shootings and of the application of the general rule that a cell phone usually registers at the closest cell phone tower. This context is shrouded in considerable uncertainty. This uncertainty significantly limits the extent to which the timing of the two calls by itself can prove Hamilton’s alibi.
342For example, there was uncertainty about the length of time between the shootings and the time Milton Lewis called 911. Even though the trial judge and the Crown suggested that he called within as short a time as seven to nine seconds after he saw the shooter run away, Mr. Lewis’ testimony was inconsistent on the timing of the 911 call, and his own evidence suggested that a few minutes may have passed before he made the call. The jury could reasonably have concluded that the perpetrators were already fleeing the murder scene in a getaway vehicle before Mr. Lewis placed his 911 call at 9:17:55 p.m. on July 24, 2001.
343There was also uncertainty about the route used by the getaway vehicle and the time it may have taken to get within the coverage area of the Telus tower at 1463 Eglinton Avenue West. The jury could reasonably have concluded that the driver of the getaway vehicle was driving away from the crime scene far more quickly than the articling student drove when he did a test run, mainly keeping within the speed limit. As well, the jury could reasonably have concluded that the getaway vehicle used a different route than did the student, including taking a route that would have avoided the tall buildings on the west side of the Allen Road.
344There was even uncertainty about whether the Telus tower at 1463 Eglinton Avenue West was the closest tower to Hamilton’s cell phone when it registered there at 9:18:45 p.m. The general rule stipulates that a cell phone will usually register at the closest tower because that tower usually has the strongest signal. However, Mr. Iaccio testified during cross-examination by counsel for Hamilton that cell towers in Toronto have differing strengths and he could not say what the actual strengths of the various towers were in this case. If another tower farther away has a stronger signal, which can on occasion occur, then a cell phone will not register at the closest tower.
345These uncertainties make the point that in deliberating on Hamilton’s alibi, the jury would not have focused on the timing of the two calls in isolation. Indeed, these uncertainties surrounding the cell phone evidence prompted the trial judge to tell the jury that they should consider the other evidence pertaining to Hamilton’s possible role in the murders. And because of these uncertainties, the Crown relied on the cell phone evidence not as the core of its case but as one piece of circumstantial evidence that placed the appellants in the vicinity of the shootings when they occurred. As did the trial judge, the Crown urged the jury to consider the other evidence implicating Hamilton in the murders.
(c) The other evidence
346In fact, a considerable amount of other evidence at trial implicated Hamilton. This evidence included his motive and his association with the other accused. Most compelling, it included various intercepted telephone conversations in which Hamilton: (i) took credit for killing Watson and Lewis; (ii) conspired with Schloss and Davis to kill Reid because Reid was telling others about his role in “serious things”, that is, as the Crown alleged, the murders of Watson and Lewis; (iii) berated his spouse, Carol Lawrence, for not giving him an alibi when homicide police asked her where he had been on the day of the shootings; and (iv) discussed in a telephone call with Schloss creating an alternative alibi.
347Even Hamilton’s statement to the police, on which he relied to buttress his alibi, was not entirely credible. He told the police that while he was speaking to Ben from Jamaica (the 9:18:45 p.m. call), he received an incoming call from a girl who said he should watch the news because “something just happened down by the Jungle.” Yet the incoming call, which came at 9:19:59 p.m. and was received by Hamilton at 9:20:01 p.m., was not from a woman but from his co-accused Schloss. Further, in his statement to the police, Hamilton said that at around 6 p.m. on July 24, 2001, he was on Eglinton Avenue West to pick up a stripper named Tasha to drive her to work for her 7 p.m. shift. However, in that timeframe, Hamilton’s cell phone did not register anywhere near Eglinton Avenue West.
348The jury undoubtedly would have taken this other highly incriminating evidence into account when assessing Hamilton’s alibi.
6. Conclusion
349We are not persuaded that the fresh evidence could reasonably be expected to have changed the result of the trial. We simply do not think that the jury would have relied on a variance in the time records of 911 and Telus of three minutes or anything close to it to reject Hamilton’s alibi and convict him of first degree murder. The other cell phone evidence at trial demonstrated a much smaller variance, a variance in line with that shown by Hamilton’s fresh evidence.
350Moreover, the uncertainties surrounding the cell phone evidence made it most unlikely that the timing of the two critical calls alone would have dictated the jury’s determination of Hamilton’s guilt or innocence. It is far more likely that the jury would have looked at the cell phone evidence as but one piece of circumstantial evidence placing Hamilton in the vicinity of the murder scene. The jury would then have looked at all the other evidence implicating Hamilton in the shootings, including his own confession, captured on his intercepted telephone conversations.
351The case against Hamilton was very strong. The fresh evidence does not undermine the reliability of the jury’s verdict. The application to introduce fresh evidence is dismissed.
Disposition of the Appeals
352For these reasons, we dismiss the appeals of all four appellants.
Signed: “John Laskin J.A.”
“M. J. Moldaver J.A.”
“H. S. LaForme J.A.”
RELEASED: “JL” May 24, 2011
1Reid’s phone did not register anywhere between 8:47 p.m. and 9:29 p.m. on the evening of the murders.
2The Crown’s explanation for the calls between Schloss and Hamilton before and after the shootings was based on the evidence of a witness who testified that after hearing shots, he saw a red car speeding past his house, just behind a green van. The Crown urged the jury to conclude that the killers drove separately to a spot near the crime scene, then got into a single vehicle and drove to the murder scene. After committing the murders, they drove away in the van and travelled to where they left the car, whereupon Schloss (and Reid and Davis) drove away separately from Hamilton.
3Two grounds of appeal were abandoned in oral argument: whether the trial judge erred in admitting the evidence relating to the conspiracy to kill Reid and; whether the trial judge erred in failing to give a Parrington charge in relation to the appellant Hamilton’s alibi.
4Angie Simms testified at trial that three black men entered the jewellery store and asked for “the black one.”
5Section 9(2) of the Canada Evidence Act states:
9 (2) Where the party producing a witness alleges that the witness made at other times a statement in writing, reduced to writing, or recorded on audio tape or video tape or otherwise, inconsistent with the witness’ present testimony, the court may, without proof that the witness is adverse, grant leave to that party to cross-examine the witness as to the statement and the court may consider the cross-examination in determining whether in the opinion of the court the witness is adverse.
6The relevant portion of s. 715 of the Criminal Code states:
715 (1) Where, at the trial of an accused, a person whose evidence was given at a previous trial on the same charge, or whose evidence was taken in the investigation of the charge against the accused or on the preliminary inquiry into the charge, refuses to be sworn or to give evidence, or if facts are proved on oath from which it can be inferred reasonably that the person
(d) is absent from Canada,
and where it is proved that the evidence was taken in the presence of the accused, it may be admitted as evidence in the proceedings without further proof, unless the accused proves that the accused did not have full opportunity to cross-examine the witness.
7Tear down time is the time between when the first party ends a call and the second party ends the call. Tear down time is included in the duration of the call on the cell phone records of the second party.
