COURT OF APPEAL FOR ONTARIO DATE: 20240806 DOCKET: M53472 (C66911)

Lauwers, Coroza and Sossin JJ.A.

BETWEEN

His Majesty the King Respondent/Responding Party

and

Akshay Prasad Appellant/Moving Party

Counsel: Anthony Moustacalis and Aidan Seymour-Butler, for the appellant/moving party Kelvin Ramchand, for the respondent/responding party

Heard: May 22, 2024

A motion to reopen the appeal decision, reported at 2022 ONCA 231, dismissing the appeal from the conviction entered on December 20, 2018 and the sentence imposed on May 23, 2019 by Justice David Salmers of the Superior Court of Justice.

P. Lauwers J.A.:

I. Overview

[1] The trial judge convicted the moving party, Akshay Prasad, of two counts of trafficking cocaine in a judge-alone trial. In doing so, he relied heavily on intercepted communications between Mr. Prasad and Xue Zhong Zhou, which he found established proof beyond a reasonable doubt of the essential elements of trafficking by offer. The recordings were of poor quality and their reliability was the central issue at trial.

[2] Police monitors attempted to produce a transcript from the recordings, but the results were unsatisfactory. Electronic means were then used to digitally enhance the recordings by reducing interference. Transcripts were prepared using the digitally enhanced recordings. Both the original and digitally enhanced recordings and the transcripts were admitted into evidence, made exhibits, and relied upon by the trial judge.

[3] On March 21, 2022, this court denied the appeal of those convictions.

[4] Mr. Prasad now asks, based on fresh expert evidence, to re-open the appeal, “quash the conviction, and enter an acquittal on all counts, or alternatively set aside the conviction and order a new trial.”

[5] The proposed evidence consists of three opinions, one by a professor of brain and cognitive sciences, another by a cognitive neuroscientist and psychologist, and the third by a professor of psychoacoustics. Mr. Prasad asserts that the fresh evidence shows that “the degraded audios and transcripts used to convict the moving party are not reliable enough to support the convictions.”

[6] Mr. Prasad relies on this evidence to challenge particularly para. 16 of this court’s reasons, which stated:

The difficulty, asserts the appellant, is that the trial judge did not set out in his reasons the differences he found between the transcripts and his own interpretation of the audio, which accordingly prevents meaningful appellate review. While it would have been preferable for the trial judge to have noted the differences, we draw the inference that the differences were neither numerous (“Almost, but not always, I agreed…”), nor material, or he would have identified and highlighted them. The argument on sufficiency of reasons fails. It would have had more force if the appellant had identified places where the transcripts and the enhanced recordings might have led to confusion, but he did not. We infer that there were none.

[7] Mr. Prasad seeks leave to admit the evidence of the three experts on the reliability problems with the method police used to transcribe the digitally enhanced audio that led to the impugned transcripts, and with the trial judge’s use of both the audio and the transcripts. Mr. Prasad asserts:

Their evidence identifies that the underlying audio tapes are unreliable, and so are the transcripts. The trial judge’s decision to use the transcripts as an aid, and his own attempt to listen to the tapes are tainted due to listener bias. This fresh evidence is potentially dispositive of the other issues in this appeal. It is very cogent, and the ends of justice require its admission.

[8] For the reasons that follow, I would dismiss both Mr. Prasad’s motion to admit the fresh evidence and his motion to reopen the appeal.

[9] After setting out the issues, I describe the proposed fresh expert evidence, and then carry out the legal analysis as to why it should not be admitted and why the appeal should not be re-opened.

II. The Issues

[10] There are three issues:

Would the expert opinion evidence be admissible at trial?
Should the expert evidence be admitted as fresh evidence on appeal?
Should the appeal be reopened?

III. The Proposed Fresh Expert Evidence

[11] The three experts are:

Dr. Joshua McDermott, who is an Associate Professor and Associate Department Head of Brain and Cognitive Sciences at Massachusetts Institute of Technology (MIT);
Dr. Ingrid Johnsrude, who is a cognitive neuroscientist and the Chair of the Department of Psychology at Western University; and
Dr. Richard Freyman, who is a Professor of Psychoacoustics (Auditory Perception) at the University of Massachusetts.

[12] The experts used the digitally enhanced audio to prepare their reports. However, Dr. Johnsrude noted that the enhancement method “has not been scientifically verified to yield more intelligible speech for unbiased listeners.” Dr. Freyman listened to the digitally enhanced audio recordings but did not look at the transcripts for fear of becoming a “contaminated listener”.

[13] The experts join in asserting that the audio is of poor quality, even in its digitally enhanced form. They concur that the transcript of the audio is unreliable. None of the experts pointed to a single word they thought was mistakenly transcribed. Rather, their objection was at the level of principle: the transcript cannot be accurate because the audio’s poor quality brings into play the psychological phenomenon of “priming”.

[14] The phenomenon of priming describes how prior knowledge of the circumstances in which the audio was obtained can “prime” the transcriber to supplement the sensory data with extraneous information that comports with the circumstances, thus biasing the transcription. This phenomenon applies, say these experts, to the police transcriber, who built the transcript on the starting assumption that this was a drug deal, and to anyone reading the transcript. To be clear, this is not bias that reflects any kind of animus. Instead, “bias” for these experts means only perceptual distortions. This bias is transmitted to those who would listen to the poor audio and who would use the transcript in deciphering it, such as trial judges and juries. No doubt they would take the same position respecting appellate justices.

[15] All three experts explain priming in similar terms. First, they say that humans perceive by combining sensory input with “implicit assumptions”, “prior assumptions”, “prior knowledge”, or “knowledge and expectations”. Dr. Johnsrude asserts that “prior knowledge and experience drive perception, particularly when sensory information is ambiguous.”

[16] Dr. McDermott notes that the “influence of our implicit assumptions on our perceptions is one of the most widely accepted and well-supported findings in perceptual science.” He then explains that these “implicit assumptions are fundamental to being able to see and hear, and are so well-integrated into our perception that they typically operate outside awareness.” He concludes that implicit assumptions “thus impose biases on perception that human observers are generally unable to assess for themselves, or compensate for when they lead [to] errors.”

[17] Second, as the quality of the sensory signal declines, the human tendency to resort to prior knowledge to fill in the gaps or resolve uncertainties increases. Dr. McDermott states: “Speech in particular is a notoriously ambiguous signal and thus is particularly influenced by [the listener’s] expectation.” Dr. Johnsrude agrees: “As the acoustic signal quality becomes poorer (as speech is more muffled, or masked, or spoken in an unfamiliar accent) expectations, based on prior knowledge, becomes an increasingly important determiner of what the listener perceives; when signal quality is poor, these expectations can drive perception”.

[18] However, Dr. Freyman acknowledges that an informed listener does have an advantage. He states: “There is some appreciation of the fact that a transcriber who has specific knowledge and context of a case can have some advantages in listening to an audio recording.” I read this as his acknowledgment that the listener who is familiar with the context, and who is also knowledgeable and experienced might be more accurate in the “translation” of the poor audio into text.

[19] The experts point out that the incursion of perceptual distortions or biases has three implications for the use of transcripts developed from poor audio inputs. The first implication is that, if the original recordings are the real evidence, then ideally the transcription of the audio should be accurate and free of the intrusion of possible perceptual distortions.

[20] The second implication is that, in order to prevent the biasing effect of a transcript, the trier of fact should listen to the audio without assistance; if the transcript is read beforehand, then the danger is that the text of the transcript will bias the listener to hear what the transcript says. Dr. Freyman explains:

[I]t is clear what should not happen, which is that a judge/jury should not read the transcript before evaluating the audio, especially if the reading and listening are in close temporal proximity. This is because of auditory “priming” where the quality of what one hears appears to be much clearer (and more intelligible) if one is familiarized with the content ahead of time.

[21] Dr. Freyman asserts that priming also happens if the transcript is read simultaneously with hearing the audio:

It would be extremely problematic if someone in a decision-making role read the transcript before or simultaneously hearing the audio. This changes the perception of the recording in a way that can lead to unwarranted confidence in the quality of the audio evidence.

[22] Further, if the trier of fact toggles between the audio and the transcript, then Dr. Freyman notes, the bias produced by priming works in both directions.

This concern includes going back and forth between audio and transcript, i.e., listening, then reading, then listening again. The second and later instances of listening are subject of priming, as is simultaneous listening and reading. The priming process appears to be automatic, requiring no conscious intention.

[23] The third implication for the use of transcripts developed from poor audio inputs is that only somebody who is completely unfamiliar with the circumstances in which the audio was taken would be capable of delivering a transcript free of bias. This is Dr. Johnsrude’s position: “an unbiased, accurate, transcription can only be obtained from someone without any prior knowledge of the context in which the recording was made.” She experimented by convening a group of 11-15 young adult listeners who were graduate students at Western University and are native English speakers. She details several instances where members of her group – an informal jury – did not agree on precisely what was being said.

[24] In light of their concerns, the experts agree that the recordings and transcripts were not reliable evidence. Dr. McDermott says:

As a result, I consider the evidence drawn from the recordings and/or the resulting transcripts to be unreliable. Moreover, I think it would be impractical to achieve an unbiased evaluation. This is because anyone listening to the recording, even without knowledge of the case, might reasonably infer that the recordings are the result of surveillance and contain discussion of drug terminology, and monetary amounts. Such inferences would inevitably set up expectations that would influence the perception of what is said.

[25] While admitting that an informed listener would have advantages in discerning the intelligibility of the audio, Dr. Freyman, takes the position that “these advantages are far outweighed by the dangers of expectations and biases.” He states that he “could find little [in the research literature] in the way of specific solutions other than not using poor quality audio to make convictions.”

[26] Dr. Freyman takes the view that “poor-quality forensic audio like the recording in this case is the norm rather than the exception, and so there is good reason to explore what should be best practices in such circumstances.” His “strong belief [is] that those in a decision-making role should not base any judgments on audio listened to after or simultaneous with reading a transcript. If that were the case, it could lead to unwarranted confidence in this poor-quality recording.” He concludes: “In my opinion the recording is so degraded that I do not see how reliable evidence could be obtained from it.” This opinion is shared by the three experts.

[27] The Crown did not seek to cross-examine the experts at this stage of the proceedings.

IV. Analysis

[28] In this section of the reasons, I lay out and apply, first, the principles governing the admission of expert opinion evidence, second, the principles governing the reception of fresh evidence on appeal, and third, the principles governing reopening an appeal. Each of these analyses intertwine and overlap.

(1) Would the expert opinion evidence be admissible at trial?

[29] There is an abiding tension in the law of evidence. On the one hand, information that is relevant to a material fact in issue is admissible as trial evidence unless an exclusionary rule applies. On the other hand, information in the form of opinion is presumptively inadmissible. This last point is sometimes overlooked and bears repeating: expert opinion evidence is presumptively inadmissible.

(a) The principles governing the admission of expert opinion evidence

[30] The governing authority on the admission of expert evidence is White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, which restates the principles set out in R. v. Mohan, [1994] 2 S.C.R. 9, R. v. D.D., [2000] 2 S.C.R. 275, R. v. J.(J.-L.), [2000] 2 S.C.R. 600, R. v. Sekhon, 2014 SCC 15, and R. v. Abbey, 2009 ONCA 624.

[31] There are two steps in the White Burgess test to admit expert evidence. The first White Burgess step is the threshold requirement. It sets out four elements for admissibility:

the evidence must be relevant;
it must be necessary in assisting the trier of fact;
no other evidentiary rule would apply to exclude it; and
the expert must be properly qualified to give the opinion.

[32] The second White Burgess step requires the trial judge to weigh the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the potential harm to the trial process that might flow from the admission of the expert evidence; this step engages the trial judge’s discretionary gatekeeper function.

The first White Burgess step

[33] Only the first two factors in the first White Burgess step are issues in this appeal – that the expert evidence is relevant and necessary in assisting the trier of fact. I do not address the final two – that no other evidentiary rule applies to exclude it and the expert is properly qualified to give the opinion. I reach the second White Burgess step of gatekeeping later. As I outline the governing principles, it is important to keep in mind the normal trial process for the admission of expert evidence. There is a voir dire that addresses the issues of relevance and necessity before the evidence is admitted in which the role of the judge and the trier of fact are carefully distinguished.

Relevance

[34] The core trial question was whether the audio was sufficiently intelligible to be admitted as evidence. This was a decisive or potentially decisive issue at trial. The fresh expert evidence would therefore appear to be potentially relevant, because the defence would seek to use it to challenge the capacity of the trier of fact to draw accurate inferences from the audio recording tendered as evidence by the Crown, and the transcript tendered as an aid, rendering the audio evidence inadmissible and the transcript unusable as an aid to the trier of fact. As noted, both the audio recordings and the transcripts were made exhibits by the trial judge.

Necessity and the role of the expert in the trial process

[35] The more difficult question is whether the expert evidence is necessary to enable the trier of fact to draw accurate inferences from the tendered audio evidence. The cases have linked the criterion of necessity with concerns about the trial process and the danger that an expert might usurp the role of the trier of fact. In my view the expert evidence does not meet the test of necessity, as I will explain.

[36] The trial process, with its allocation of responsibilities between the judge and the trier of fact, is primordial: the trial process must be respected, particularly the role of the trier of fact, which must never be usurped by another. Consequently, to be admissible and to guard against such usurpation, opinion evidence must meet more exacting criteria.

[37] Justice Cromwell expressed the longstanding policy of the law, quoting Thayer, who said in 1898 that it is "for the jury to form opinions, and draw inferences and conclusions, and not for the witness": White Burgess, at para. 14. The point, added Cromwell J., “is to preserve trial by judge and jury, not devolve to trial by expert”: White Burgess, at para. 18. See also R. v. D.D., per Major J., at para. 49. While Cromwell J.’s quoted comments might appear related to the second White Burgess step of gatekeeping, I introduce them here because he noted that relevance, necessity, and reliability are “part of a sliding scale” that plays a role “in weighing the overall competing considerations in admitting the evidence”: White Burgess, at para. 25

[38] Justice Cromwell expressly approved, at para. 24 of White Burgess, Doherty J.A.’s statement in Abbey that the “trial judge must decide whether expert evidence that meets the preconditions to admissibility is sufficiently beneficial to the trial process to warrant its admission despite the potential harm to the trial process that may flow from the admission of the expert evidence” (emphasis added): Abbey, at para. 76.

[39] Justice Doherty cautioned: “the most important risk is the danger that a jury will be unable to make an effective and critical assessment of the [expert opinion] evidence” because of complexity and “impenetrable jargon”: Abbey, at para. 90. He warned that, in addition “to the risk that the jury will yield its fact-finding function, expert opinion evidence can also compromise the trial process by unduly protracting and complicating proceedings”: at para. 91.

[40] The necessity inquiry does not examine the expert evidence in isolation. It asks whether the expert evidence is needed to enable the trier of fact to perform its fact-finding function properly and accurately.

Questions or criteria to guide thinking about whether expert evidence is necessary

[41] The cases have generated considerations that can be framed in terms of questions or criteria for assessing whether expert evidence is necessary. I consider several.

[42] First, is the subject matter of the expert evidence within or beyond the common experience of lay people? Major J. adopted the words of Professor Paciocco that expert evidence should be admitted: “Only when lay persons are apt to come to a wrong conclusion without expert assistance, or where access to important information will be lost unless we borrow from the learning of experts”: R. v D.D., at para. 57. And see R. v. D.R., [1996] 2 S.C.R. 291 at para. 74, per L’Heureux-Dubé J.

[43] A useful distinction can be made between hard and soft sciences. Professor David Paciocco (as he then was) stated: “While distorting opinions can occur within the hard sciences, the risk that they will exist is more prevalent with behavioural science.” He explained: “Reliability problems, while not peculiar to behavioural science, tend to be more intense for the behaviourist than for the ‘hard scientist’”.

[44] Indeed, judges and juries might be tempted to defer to experts in the field of the behavioural sciences. Justice McLachlin (as she then was) observed in Marquard, at para. 51, that “expert evidence on human conduct and the psychological and physical factors which may lead to certain behaviour relevant to credibility, is admissible, provided the testimony goes beyond the ordinary experience of the trier of fact” (emphasis added). In R. v. McIntosh, (1997) 35 O.R. (3d) 97, Finlayson J.A. cautioned, at para. 14: “We are too quick to say that a particular witness possesses special knowledge and experience going beyond that of the trier of fact without engaging in an analysis of the subject matter of that expertise.”

[45] The notional line between what is within the normal experience of a trier of fact might change over time and might vary between localities, as O’Connor J.A. pointed out in R. v. D.S.F., (1999) 43 O.R. (3d) 609, at para. 65. This line must be continually reassessed.

[46] Second, and relatedly, how might the admission of the actual subject matter of the expert evidence affect the trial process? There are many cases in which expert psychological evidence – the product of a soft science – has been rejected on the basis that the testimony does not go beyond the ordinary experience of the trier of fact. In McIntosh, Finlayson J.A. set out the area on which the expert evidence was proposed to testify, at para. 11:

Dr. Yarmey commented on the factors present at the time of the robbery that would impair the witnesses’ ability to make an accurate identification, the problem of cross-racial identification, the quality of memory recall for perceived events over different time spans, the influence of “post event information” on memory, the validity of the photographic lineup, the misconceptions of jurors with respect to photographic lineups, the difficulties with “in dock” identifications, and police procedures relating to the identification of the two accused persons.

[47] Justice Finlayson found that the trial judge was right to refuse to admit the evidence because the expert “is not testifying to matters that are outside the normal experience of the trier of fact: he is reminding the jury of the normal experience” (emphasis added): at para. 20. See also R. v. Frimpong, 2013 ONCA 243 (refusing expert evidence on the frailty of eye-witness testimony), and R. v. Pearce, 2012 MBQB 22 (refusing psychological evidence on false confessions).

[48] There is plainly no rule banning evidence as to the psychology of a witness. Much depends on the context. In R. v. R.D., the Supreme Court held that the evidence of a psychologist tendered by the defence on the reliability of the memories of children was admissible, while in R. v. D.D., decided four years later, the Supreme Court held that similar evidence tendered by the Crown was not admissible.

[49] I would draw an additional distinction between evidence about how psychological influences might affect a witness, and evidence about how psychological influences might affect a judge or jury. In this case, the proposed evidence touches on both. The police officer giving evidence as to drug culture lingo and the police transcriptionist would both be affected by priming, as would the judge as the trier of fact, on the theory advanced by the experts.

[50] It seems to me that a fundamental challenge to the routine, longstanding, and time-tested operation of the system of justice, such as how psychological influences might affect a judge or jury, should be treated with great caution, if not serious skepticism. We upend the common law at our peril.

[51] The third question is this: does the expert evidence express an opinion on the very question that the trier of fact must answer? There is judicial reluctance to freely admit such opinion evidence because doing so might usurp the task of the trier of fact. I pick out here, once again, the words of McLachlin J. in Marquard: “there is a growing consensus that […] expert evidence on the ultimate credibility of a witness is not admissible”: at para. 51. In Mohan, Sopinka J. called for stricter scrutiny: “The closer the evidence approaches an opinion on an ultimate issue, the stricter the application of this principle”: Mohan, at para. 32. See also R. v. J.(J.‑L.), [2000] 2 S.C.R. 600, para. 37.

[52] This problem that undue weight might be given to the expert opinion on the “very question” that the trier of fact must answer can be avoided by more careful instructing questions put to an expert by counsel who is alert to this problem. Sometimes it can be overcome by the trial judge ordering partial redactions of the text of expert reports. Ultimate reliability, along with credibility, is the province of the trier of fact. Of course, trial judges too must not permit themselves to be unduly influenced by the opinions of experts on ultimate questions.

[53] Fourth, could the caution implicit or explicit in the expert opinion be adequately communicated by a jury instruction or by a judge’s implicit or explicit self-instruction? For example, in R. v. D.D., as noted, the majority of the Supreme Court found that the psychological evidence should not have been admitted. Major J. said, at para. 58: “In my view, the content of the expert evidence admitted in this case was not unique or scientifically puzzling but was rather the proper subject for a simple jury instruction.” See also McIntosh, at paras. 22 and 26. Justice Doherty concluded in Abbey that, in “addressing the extent to which the opinion evidence is necessary, the trial judge will have regard to other facets of the trial process – such as the jury instruction – that may provide the jury with the tools necessary to adjudicate properly on the fact in issue without the assistance of expert evidence”: at para. 95.

(b) The application of the principles governing necessity

[54] I will use the four questions set out in the previous section as my framework.

(i) Is the subject matter of the expert evidence within or beyond the common experience of lay people?

[55] I would adopt this understanding of the concept of priming: “Put simply, priming is what happens when our interpretation of new information is influenced by what we saw, read, or heard just prior to receiving that new information…” The fact that this definition is found in a textbook on legal persuasion and rhetoric is not surprising. With due respect to the experts, the concept of priming is not new, nor is it beyond ordinary human understanding and experience. It has always been a staple of human communication and persuasion. The figure of speech of “warming up” an audience expresses it well. Priming the listener is essential to successful rhetoric, a subject of learning millennia old. Aristotle’s book on rhetoric, for example, is dated to the 4th century BCE.

[56] It bears noting that the one who has been primed is not thereafter invincibly convinced of the truth of the position that the priming seeks to entrench. Priming begins but does not end the process of deliberation, discussion, and argument – the natural process of human action and collaboration in getting to the truth of the situation. The outcome of that process is neither foreordained nor dictated by priming.

[57] It is hard to overstate the importance of context. People who enter a room, a setting, or a conversation arrive with their perceptual faculties alert and aimed at making sense of things. The environmental context clues them in. This is a courtroom. This is a legal case. This is a criminal case. This is a case about drug charges. Each iteration sharpens the context and primes the participants to receive the next relevant bit of information.

[58] To pick a neutral example in the field of the interpretation of language, a lay person overhearing a technical conversation between particle physicists would be flummoxed by the jargon. The words are English, but in the technical clinch those words are unlikely to be intelligible to a lay listener. The physicists are speaking a specialized language. Someone with expertise must translate if the language is to be intelligible to a lay person.

[59] This is also true for drug jargon. The words are English, but the jargon is a specialized language. Someone with expertise must translate it if the jargon is to be intelligible to a lay person. When the audio recording is poor, the transcription and translation exercises, which are intertwined, become more difficult.

[60] Dr. Freyman recognizes, from his review of the literature, that “[p]oor quality forensic audio like the recording in this case is the norm rather than the exception”. He acknowledges “some appreciation of the fact that a transcriber who has specific knowledge and context of a case can have some advantages in listening to an audio recording.” But he says that the possibilities of wrongful conviction are intolerably high because the translation and transcription are too unreliable.

[61] I disagree with the suggestion that the translation and transcription in this case were too unreliable to admit into evidence. The knowledge and contextual advantages of the police monitor and the judge can also provide circumstantial guarantees of accuracy in hearing, translation, and transcription of a poor audio recording.

[62] Several aspects of this case establish circumstantial guarantees of reliability. First, the context is critical. The speakers in the audio, Mr. Prasad and Mr. Zhou, were not likely talking about the weather, sports, or the virtues of various musicians – nothing of that sort is suggested. They were talking about drugs. The trial judge was satisfied that the police expert evidence established the drug that they were speaking about was cocaine, based on the jargon regarding the type, the quantity, and the price.

[63] Second, the effect of priming is not beyond the experience or knowledge of ordinary people. In this case, for example, the trial judge was alive to the priming problem. As noted in the panel’s judgment, at para. 15, the trial judge said in his reasons for judgment:

…I also listened many times to the recordings. Almost, but not always, I agreed with Ms. Solsky’s transcripts identifications of the speakers and what was said. When I found any differences between the recordings and the transcripts, either about what was said or by whom, I relied on what I heard in the recordings when deciding this case.

[64] The trial judge gave a more detailed explanation of the careful process undertaken by the police and by him in listening to the recordings and reading the transcripts in his reasons for dismissing Mr. Prasad’s application to have the intercepted communications excluded at trial. I attach the relevant sections as an appendix for completeness because the decision is not reported. Here I pick out several salient paragraphs that demonstrate the care the trial judge took.

[65] The trial judge first listened without reading the transcript, and then read it.

[11] I have listened multiple times to both the original recordings and the clarified recordings. I did so without looking at the produced transcripts and while I was looking at the transcripts. The continuity of the speech in each clarified recording is virtually identical to the continuity of the speech in the original, unaltered recording. Further, comparing each clarified recording to its original, unaltered recording, I found that on the clarified recording, there were no additional or deleted portions of speech and no audible words that were inconsistent with the original recording.

[12] Having listened to the clarified recordings, I found that much of the speakers’ words are discernable. With multiple listenings, words became increasingly discernable.

[13] In all of these circumstances, I am satisfied that in the clarified recordings, the audible voices of the speakers are accurate, but clarified, reproductions of the actual words and speech of the speakers in the original, unaltered recordings. Accordingly, it was appropriate for the police, Mr. Langley in particular, to direct that transcripts be produced of those clarified recordings. [emphasis added.]

[66] The trial judge’s self-instruction is very clear:

[16] As we always tell juries, they must rely on the recording when deciding a case. The transcript is only an aid to help follow and possibly help determine what was said on the recording and by whom. However, if I, or any trier of fact, find any differences between the recordings and the transcripts, either about was said or by whom, I must rely on what I hear on the recordings and any other evidence given about the identity of the speakers, rather than what is in the transcripts.

[19] For the reasons set out earlier, I am satisfied that the clarified recordings are accurate, but clarified, reproductions of the actual words and speech of the speakers in the original, unaltered recordings.

[67] The trial judge found the remaining inaudible words to be insignificant:

[20] Even after being clarified, there remain some inaudible or undiscernible words in the recordings. However, after considering what preceded and followed such inaudible or undiscernible words and the totality of the recording, I am satisfied that neither any single inaudible or indiscernible word or portion nor the totality of inaudible or indiscernible words or portions cause a loss of context in the recording that would lead to conjecture about what is being said in the clarified recordings. Enough of each recording is audible and discernable so that the context is clear. I am satisfied that in the subject recordings, inaudible or indiscernible words or portions do not lead to any ambiguity that would mislead me, confuse me, or lead me to conjecture about material facts or issues.

[21] In the clarified recordings, much of the speakers’ words are discernable. The carefully prepared transcripts will further assist me in determining if I can find what was being said and by whom in the recordings.

[68] The trial judge then concluded:

[22] For all of these reasons, I am satisfied that each of the subject recordings is at least adequate to enable me to fairly and reliably assess the substance of the recorded conversation without being misled or confused or led to conjecture about material facts or issues. The recordings are relevant and, depending on all of the other evidence, may have significant probative value. As a judge-alone trial, there is little prejudice in receiving the recordings as evidence. Accordingly, the recordings are admissible evidence. The application is dismissed in its entirety.

[69] The third circumstantial condition of reliability is that the conscientious process the trial judge took of listening again and again is exactly what one would expect a person, including non-experts, to do with unclear audio (or unclear video, see R. v. Saeed, 2019 ONSC 1306, per Copeland J. (as she then was) at para. 24, commenting on the application of R. v. Nikolovski, [1996] 3 S.C.R. 1197, paras. 29-30). There is nothing inherently objectionable in such repetition, nor is there any support in the expert evidence that doing so leads to inaccuracies. This is a trial judge’s discernment in action, and it led this panel to defer to his findings.

(ii) Second, how might the admission of the actual subject matter of the expert evidence affect the trial process?

[70] The expert evidence in this case is about the effect of priming on human cognition. It is cast generally and largely does not engage with the actual audio and the transcript in this case. It floats and does not touch down. Dr. Johnsrude’s idea that only someone wholly ignorant of the context could transcribe the audio ignores entirely the normal process of human cognition and communication, which is context driven, as the experts acknowledge in the excerpts set out above at paras. 15-16.

[71] The purpose of the expert evidence is to undermine confidence in the entire category of unclear wiretap evidence, even while recognizing that such audio evidence is often of poor quality and radically discounts careful listening, translating and transcribing – the process undertaken by the police and, more importantly, the trial judge in this case. Giving effect to Dr. Freyman’s position that such evidence must always be excluded as unreliable would drive a wooden stake through the heart of many police investigations of criminal activity and the prosecution of criminals. The balance is for the court to strike, not the experts.

[72] Importantly, there is no suggestion in the proffered expert evidence that there were any actual errors in the transcription of the audio.

[73] I would observe that the implicit standard in the experts’ opinions is one of perfection that is not achievable in the real world. Wiretap probes are hidden to avoid detection and criminals do not “speak into the mike”. Poor audio is endemic and unavoidable with current technology. The question is whether it can be accurately heard, translated, and transcribed both in the police investigative process and in the ordinary trial process. Daily experience across the criminal justice system demonstrates that poor audio can be properly handled. The law requires a fair trial, not a perfect one: R. v. Goldfinch, 2019 SCC 38, at para. 30.

[74] To summarize, the admission of the subject matter of the expert evidence in this case would unacceptably usurp the role of the trial judge and the trier of fact. Disputes about the intelligibility of audio recordings are not unusual in the criminal courts. No doubt in some cases the judge will find the audio to be unintelligible at the threshold and reject it, or the trier of fact will either find it to be unintelligible or find that reliability concerns give rise to a reasonable doubt, but that is not this case.

(iii) Does the expert evidence express an opinion on the very question that the trier of fact must answer?

[75] The expert opinion evidence in this case is bold. It takes the position that the audio evidence is unintelligible and unreliable. It is not the only evidence the trial judge relied on in convicting Mr. Prasad, but it was the key evidence he was required to interpret and to make findings on, as the trier of fact. This is not a case where the experts are directly opining on Mr. Prasad’s guilt or innocence, but given the nature of the trial, it reaches close to the ultimate issue to be determined by the trier of fact. The expert evidence must be strictly scrutinized even though it is not about a witness’s credibility, as the courts held in Marquard and Mohan.

(iv) Could the caution implicit or explicit in the expert opinion be adequately communicated by a jury instruction or by a judge’s implicit or explicit self-instruction?

[76] I see no reason why a jury instruction or a judge’s self-instruction could not sufficiently alert the trier of fact to the possibility of the influence of priming on the trier of fact’s reception of the audio evidence and transcripts based on it. Priming is a commonplace phenomenon experienced by everyone. The trial judge’s self-instruction was wholly adequate.

(v) Conclusion on the application of the first White Burgess step

[77] I would find that the expert evidence is not admissible at the first White Burgess step. While the evidence is potentially relevant, it is not necessary. The concept of priming is not new, nor is it beyond the common experience of lay people. It is a staple of human communication and persuasion. That said, I am not to be read as downplaying the role of priming and its possible pernicious effects in criminal trials. Priming can be, and sometimes must be, the subject of a jury instruction or a trial judge’s implicit or explicit self-instruction. Such an instruction is far less complicated than other instructions routinely given to juries.

[78] Further, the trial judge was alive to the problem. His process of accommodating it, including repeated listenings, was natural and unexceptionable.

[79] The expert evidence attempts to answer the case’s central question but does not engage with the actual evidence; it is an unwarranted wholesale assault on the ordinary criminal trial process. In my view, the proposed expert evidence would not be admissible at trial.

The second White Burgess step: The gatekeeper function

[80] The second step of White Burgess requires the trial judge to exercise the discretionary gatekeeping function; the proffering party must establish that the potential benefits of the fresh expert evidence justify the potential harm to the trial process that might flow from its admission.

[81] Justice Cromwell noted that in gatekeeping, the trial judge can helpfully see, to repeat, relevance, necessity, and reliability “as part of a sliding scale” that plays a role “in weighing the overall competing considerations in admitting the evidence”: White Burgess, at para. 25. The trial judge “must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers materializing that are associated with expert evidence:” White Burgess, at para. 54.

[82] I see no benefits to the admission of the expert evidence in this case and see several hazards which I laid out in applying the principles of the first White Burgess step, which I will not repeat. I add that the admission of the fresh evidence would interfere with and unduly protract the trial process.

[83] The two steps, as Cromwell J. noted in White Burgess, are not silos but are interrelated. On the facts of this case, the expert evidence would not survive a gatekeeper’s scrutiny and would not be admitted.

(2) Should the expert evidence be admitted as fresh evidence on appeal?

[84] Mr. Prasad seeks to introduce the expert evidence as fresh evidence on the appeal. Given the answer to the first issue, there is no need to address this issue, but I do so on the basis that it was argued and might affect future cases.

[85] The governing Palmer test for the admission of fresh evidence on appeal requires Mr. Prasad to establish that the evidence is admissible as ordinary evidence, that it is cogent, and that the party applying exercised due diligence. In Truscott (re), 2007 ONCA 575, at para. 69, this court gave some additional form to Palmer’s cogency criterion by separating out relevance, credibility, and probative value for analytical purposes. I have already addressed the first inquiry – whether the evidence is admissible as ordinary evidence – and concluded it is not. I now address cogency and due diligence.

[86] Cogency is a qualitative analysis; it assesses the probative potential of the proposed fresh evidence in the context of all the trial evidence and whether it would have had the potential to change the trial result: Truscott, at para. 100. To repeat my view, the expert evidence is not cogent. It does not specify any actual errors in the transcription of the audio.

[87] Due diligence stipulates that the fresh evidence should not be admitted if it could have been adduced at trial, though this criterion will not be applied as strictly in a criminal case where its strict application might lead to a miscarriage of justice: Palmer, at para. 23.

[88] Mr. Prasad could have proffered what is now the fresh evidence at the trial. The intelligibility of the audio was a key issue at the trial. But defence counsel at trial (not appeal counsel) swears that he was unaware of the science on “the issues of the inaudibility of the audios and the neuroscience or neuropsychology regarding audio perception or on the effect of being primed with knowledge of the nature of the case and related listener bias issues.” He adds that the failure to adduce the evidence “was not a tactical decision on my part.” I would not dispute the good faith of defence counsel at trial, but the appeal then runs squarely into Charron J.A.’s words (as she then was) in R. v. Rhingo, (1997) 33 O.R. (3d) 202, at p. 214: “The appellate process cannot become or even appear to become a never-closing revolving door through which appellants come and go whenever they propose to argue a new ground of appeal.”

[89] Even though due diligence is a criterion that should not be applied as strictly in a criminal case where its strict application might lead to a miscarriage of justice, it remains a factor: Palmer, at para. 23, R. v. Hay, 2013 SCC 61, at para. 64; R. v. Manasseri, (2016) 132 O.R. (3d) 410, at paras. 206, 219-222, R. v. Smithen-Davis (2020), 2020 ONCA 759, per Watt J.A., at para 60.

[90] I would find that the fresh evidence does not meet the Palmer criteria for admission on appeal.

(3) Should the appeal be reopened?

[91] Given the answer on the first two issues, there is no need to address this issue, but I do so on the basis that it was argued and might affect future cases. The tension in a motion to re-open an appeal is between finality and avoiding a miscarriage of justice. Finality is of great weight, as Charron J.A. said in Rhingo, at p. 214:

Parliament recognizes that fairness and justice interests require that the accused have a full opportunity to challenge a conviction even though that opportunity will prolong the process. Once those broad appellate rights have been exercised and the merits of the appeal decided, then absent an appeal to a higher court, finality concerns must become paramount. Those affected by the process should be entitled to rely on the appellate decision and conduct themselves accordingly. The appellate process cannot become or even appear to become a never-closing revolving door through which appellants come and go whenever they propose to argue a new ground of appeal. [Emphasis added.]

[92] Under s. 683(1)(d) of the Criminal Code, an appellate court may receive the evidence of any witness when the court considers it “in the interests of justice to do so.” In the context of reopening an appeal, “[t]he core question is whether the applicant has established a clear and compelling case that a miscarriage of justice will likely occur absent reopening”: Smithen-Davis (2020), 2020 ONCA 759, at para. 35. This court has reflected on the intersection between reopening an appeal and the reception of fresh evidence: Manasseri, at paras. 200-252; Smithen-Davis (2020), 2020 ONCA 759, at paras. 58-60; Smithen-Davis, 2022 ONCA 832, per Pepall J.A. at para. 35 and following.

[93] I extract the following governing principles from these cases, which I paraphrase in the interests of brevity:

First, finality carries great weight in the calculus because there has already been a full trial process and an appeal on the merits.
Second, the moving party must establish a clear and compelling case that a miscarriage of justice will likely occur if the appeal is not reopened.
Third, that clear and compelling case may be established using fresh evidence.

[94] I need not address again the first and third bullets. This appeal turns on the second – whether the moving party has established a clear and compelling case that a miscarriage of justice will likely occur if the appeal is not reopened. For the reasons set out above, the expert evidence is neither necessary nor cogent. I see no ground on which it could be said, based on the fresh expert evidence, that the trial resulted in a miscarriage of justice.

V. Disposition

[95] I would dismiss both Mr. Prasad’s motion to admit the fresh evidence and his motion to reopen the appeal.

Released: August 6, 2024 “P.D.L.” “P. Lauwers J.A.” “I agree. Coroza J.A.” “I agree. Sossin J.A.”

APPENDIX: Selections from the trial judge’s reasons for dismissing the defence motion to exclude the audio evidence and the transcripts

[9] The original monitors of the subject interceptions had great difficulties producing transcripts of the subject recordings because of the noise interference. Accordingly, a trained, experienced, civilian police employee, Ian Langley, was directed to perform mechanical, electronic tasks to attempt to “clarify” (his words) the speech in the recordings. Mr. Langley is routinely asked to clarify recordings of intercepted communications. He gave evidence about how he used electronic means to clarify the original recordings. Basically, he used electronic means to determine at what frequency (or frequencies) and when the audible interference was occurring. He then applied electronic filters at that or those frequency or frequencies to turn down the volume of the identified interference. In other words, he testified that, essentially, he turned down the background noise and turned up the voices of the speakers. The clarified recordings were in evidence before me. After the recordings were clarified in this manner, the speakers’ voices are much clearer and much easier to understand. After the recordings were clarified, Mr. Langley asked another civilian police employee to produce transcripts of the clarified recordings.

[10] Mr. Langley testified that nothing he did to clarify the recordings changed the content of what was said. There were no additions or deletions to what the recorded speakers may have said. However, he did testify that because some of the applied filters were in frequency ranges of human speech, the volume of any human voice at those filtered frequencies would have been reduced. He could not say whether, in this case, that filtering had caused a reduction in the volume of any of the speakers’ voices on the recordings.

[12] Having listened to the clarified recordings, I found that much of the speakers’ words are discernable. With multiple listenings, words became increasingly discernable.

The Transcripts

[14] As stated earlier, the persons who originally monitored the intercepted subject communications had great difficulty producing transcripts of the original, unaltered recordings. After the recordings were clarified, an experienced civilian police employee, Christine Solsky, was asked to produce transcripts of the clarified recordings. Ms. Solsky had not previously heard either the original or clarified recordings and had not previously been involved with anything related to this investigation or the large police project of which this investigation was a part.

[15] Ms. Solsky testified and described the very careful, sensible, and reasonable steps taken by her to produce the transcripts. It is those transcripts which were in evidence before me. I am cognizant that the transcripts are her opinion and belief of what she heard on the clarified recordings. Ms. Solsky candidly admitted the difficulties encountered when producing these transcripts. Those difficulties included the quality of the recording, the varying volumes of the speakers, the speed of the conversations, the accents of both speakers, the fact that English was not the first language of either speaker, the speaker identified as Mr. Prasad has an Indian accent while the speaker identified as Mr. Zhou has a Chinese accent, and the overlapping voices of the speakers. She acknowledged that she found some words to be insufficiently audible or intelligible to be capable of being understood and transcribed. She acknowledged that sometimes it was difficult to tell who was speaking. She also acknowledged that different monitors may think that they hear different words on a recording.

[17] Based on the manner in which Ms. Solsky produced the transcripts, I am satisfied that the transcripts will be useful for me to determine what was said and by whom in the recordings, subject to the limitations stated in the previous paragraph.

Conclusion

[18] As stated above, the recordings are not mere snippets of conversations. The recordings are of entire conversations. I am advised that there will be surveillance and other evidence to assist with identifying the speakers and the context of their conversations.

R. v. Prasad, 2024 ONCA 601

Case Summary