COURT OF APPEAL FOR ONTARIO
CITATION: R. v. Cyr, 2012 ONCA 919
DATE: 20121227
DOCKET: C51817
Weiler, Watt and Epstein JJ.A.
BETWEEN
Her Majesty the Queen
Respondent
and
Paul Leonard Cyr
Appellant
Anida Chiodo and Joseph Wilkinson, for the appellant
Susan Magotiaux, for the respondent
Heard: May 3, 2012
On appeal from the convictions entered by Justice J. Bryan Shaughnessy of the Superior Court of Justice, sitting with a jury, on June 30, 2009.
Watt J.A.:
[1] A jury decided that Paul Cyr (the appellant) was not only a chicken thief but also a killer. A chicken thief because he hijacked a tractor-trailer unit carrying about 14,000 kilograms of frozen chickens, then sold the chickens to some food wholesalers eager for a bargain. A killer because he shot the truck driver in the back of the head and left him dead in the cab of his truck.
[2] The appellant was convicted of first degree murder and of theft. He seeks a new trial. He says that his first trial was flawed because the trial judge admitted some evidence about cell phone calls that should have been excluded, and didn’t charge the jury correctly on the position of the defence and the evidentiary value of the appellant’s statement to the police.
[3] These reasons explain why I am satisfied that neither the trial judge’s evidentiary rulings nor his instructions to the jury reflect error, and would dismiss the appeal.
The background facts
[4] Donald Woods (the deceased) and the appellant were commercial truck drivers. The deceased worked for AK Brothers. The appellant worked for his brother, Jacques Cyr at JC Drivers.
[5] In June 2006, Woods was interested in working for JC Drivers and planned to meet with the appellant to discuss employment prospects. The appellant was aware of Woods’ interest.
[6] On June 21, 2006, Woods was driving a load of frozen chicken, weighing nearly 14,000 kilograms, from Drummondville, Quebec to Toronto. The load had been brokered to AK Brothers through JC Drivers, apparently a common practice between the two companies. Jacques Cyr did not know that Woods was the driver assigned to this load.
[7] On the same day, Jacques Cyr and the appellant picked up separate loads of frozen food in Brampton for delivery to Quebec. The appellant’s load was to be delivered the following morning, June 22, 2006.
The Planned Meeting
[8] On his way from Drummondville to Toronto, Donald Woods stopped in Brockville to speak with his wife. He told his wife that he planned to meet up with some people from JC Drivers to talk about changing employers from AK Brothers to JC Drivers.
[9] Around 6:00 p.m. on June 21, 2006, the deceased’s cell phone received a call from a payphone located at an Esso station off the 401 near Newtonville, Ontario. The appellant had dinner with his brother at an Esso station near Newtonville the same evening. The call was charged to a calling card used only once before, to call from Montreal (near where the appellant lived) to M & S Produce, a food supply company whose telephone number was found in a log book located in the appellant’s truck.
[10] As the deceased approached the 10 Acre Truck Stop near Belleville, he called his wife on his cell phone. He explained that he was supposed to meet someone from JC Drivers to talk about a job, but that he was very tired and wanted to rest. His wife told him to go through with the meeting and sleep afterwards.
The 10 Acre Truck Stop
[11] The appellant called his brother on his cell phone to tell him that he (the appellant) was going to pull over at Belleville for some rest and to refuel the truck.
[12] The appellant arrived at the 10 Acre Truck Stop at 8:13 p.m. on June 21, 2006.
[13] Woods arrived at the 10 Acre Truck Stop at 11:41 p.m. on June 21, 2006. He was never heard from again.
The Departure of the Deceased’s Truck
[14] The deceased’s truck left the 10 Acre Truck Stop at 12:06 a.m. on June 22, 2006, about 25 minutes after Woods had told his wife that he was very tired and wanted to sleep.
[15] The appellant’s truck remained at the 10 Acre Truck Stop until 11:42 p.m. on June 22, 2006.
The Telephone Calls to Food Wholesalers
[16] In June, 2006 Dominic Yau, a food wholesaler in the GTA, had discussions with a man who had been referred to him by Gary Kwok. The man, whom Yau remembered as “Paul”, was a white-skinned, very fit truck driver with arm tattoos. The description provided by Yau fits the appellant. Yau couldn’t take the volume of chicken being offered so he referred the man to Mark Pang of Tai Wah Trade, who agreed to buy the deeply discounted chicken. Pang recalled speaking to someone, who could have had the name “Paul”, or some other name, about buying chicken. The man said he would soon have a load of cheap chicken for sale.
[17] Records for the appellant’s cell phone confirmed calls to and from numbers associated with Kwok, Yau, and Tai Wah Trade, including several calls between June 15 and June 20, 2006, between the phones of the appellant and Mark Pang.
[18] Mark Pang testified that he spoke by telephone with the person offering the discounted chicken the day before it was delivered.
The Delivery of the Chicken
[19] Between 2:43 a.m. and 7:59 a.m. on June 22, 2006, 19 calls were made from the appellant’s cell phone to telephones at Tai Wah Trade. Every call was routed through a cell tower northwest of Tai Wah Trade’s business premises.
[20] Shortly after 8:00 a.m. on June 22, 2006, Mark Pang arrived for work at Tai Wah Trade. There, he met a man in a white truck waiting to unload and sell Pang a load of very cheap frozen chicken. This man, who could have been named “Paul”, demanded payment in cash. The two men unloaded the chicken. The weights on the boxes Pang purchased matched the weights on the missing load from Woods’ truck. Pang and the man drove to another wholesaler to unload more chicken.
[21] Pang paid the man some of the money in cash on delivery, but told the man he would have to return later to collect the balance. The man came back around 5:00 or 6:00 p.m. to collect the outstanding balance.
[22] Pang felt sure he could identify the chicken seller if he saw him again. He failed to pick out the appellant’s photograph from a line up about four months later. There was evidence that the appellant’s appearance in the photo was quite different than it had been in June 2006.
[23] During the afternoon of June 21, 2006, the appellant’s cell phone made and received several calls all routed through cell towers in Markham and Toronto.
The Return Trip
[24] Donald Carpentier, a truck driver employed by Nish Transport, made a pick up at M & S Quality Produce in Markham around 4:00 p.m. on June 22, 2006. The appellant was there talking with the owners of M & S with whom he seemed quite familiar. The appellant told Carpentier that he needed a ride to Belleville where his truck was being repaired. Carpentier agreed to take the appellant with him. The men shared driving responsibilities on the way to Belleville.
[25] The appellant and Carpentier arrived at the 10 Acre Truck Stop around 8:30 p.m. on June 22, 2006. The appellant put his bag in his white truck and had dinner with Carpentier at the Truck Stop. Carpentier went to his truck to sleep.
The Inquiry
[26] Around 11:30 p.m. on June 22, 2006, Carpentier was awakened by a conversation between the appellant and a woman who was standing outside the appellant’s truck. The woman was Nicole Woods, the deceased’s wife, who was making inquiries about her husband’s whereabouts.
[27] Carpentier left the 10 Acre Truck Stop after he was awakened by the woman’s inquiries. The appellant left at 11:42 p.m.
The Explanation
[28] Jacques Cyr retrieved a phone message from his brother on the morning of June 22, 2006, that the refrigeration unit on his truck wasn’t working properly and required repair. Later that night, the appellant told Jacques that the unit was working properly. When finally delivered on June 26, 2006, the frozen food contained in the trailer of the appellant’s truck was still frozen. No invoices for repairs to the refrigeration unit were ever produced.
The Finding of the Body
[29] Early on the morning of June 23, 2006, a Walmart employee in Pickering noticed a large white truck in a laneway outside the store and reported the discovery to police.
[30] Police entered the truck and found Donald Woods’ body on the floor of the truck cab. His hands were close together behind his back, but untied. Woods’ DNA was found on a plastic tie in the cab. Woods died from a gunshot wound to the back of the head. No forensic evidence linked the appellant to the deceased’s truck.
The Appellant’s Version
[31] The appellant did not testify. During a police interview introduced at trial as part of the Crown’s case, he denied any involvement in and knowledge of the killing of the deceased. The Crown alleged several responses of the appellant during the interview were proven false by other evidence and that the interview contained several strategic omissions, including any mention of the allegedly defective refrigeration unit on the appellant’s truck.
[32] At trial, the position advanced on the appellant’s behalf was that he never met the deceased at the Truck Stop and had nothing to do with his death or the theft of his truck and its load. The appellant went to Toronto because he left his truck at the Truck Stop so that the refrigeration unit could be repaired. He hitched a ride back to the Truck Stop. No forensic evidence linked him to the deceased or his vehicle.
The grounds of appeal
[33] The appellant advances four grounds of appeal.
[34] Two grounds have to do with the reception of evidence about telephone calls made to and from the appellant’s cell phone. The appellant says the cell phone propagation maps – maps of cell phone tower locations in a geographical area activated by the cell phone used by the appellant - and the results of test calls made by a police officer should not have been admitted.
[35] The other two grounds of appeal are two alleged omissions in the trial judge’s final instructions to the jury: failing to include - within a W. (D.) instruction - exculpatory evidence beyond the police interview, and failing to distinguish between disbelief and fabrication in connection with alleged lies in the appellant’s statement to police.
[36] I will consider the claimed shortcomings in the charge, and thereafter, the evidentiary grounds relating to the cell phone calls.
Ground #1: The W. (D.) Instruction
[37] The first ground of appeal does not allege any error in the substance of the W. (D.) instruction, rather the appellant complains of a failure to include within it potentially exculpatory evidence beyond the appellant’s police interview. The result, according to the appellant, was a failure to relate crucial aspects of the evidence adduced at trial to the position of the defence so that jurors would appreciate the value and effect of that evidence.
The Additional Background
[38] The Crown’s position was that the chicken seller was, at once, the chicken thief and the person who killed Donald Woods.
[39] At its most basic, the defence position at trial was that the appellant never met Donald Woods at the 10 Acre Truck Stop on June 21, 2006, and was not the person who stole his truck, trailer, and load, sold the chicken to the wholesalers, and killed him. The police interview, introduced as part of the Crown’s case, contained the core of the appellant’s defence.
[40] At trial, the appellant relied on Pang’s failure to identify him as the chicken seller as evidence supportive of his denial of involvement. Pang also said that the chicken seller returned at 5:30 p.m. for the balance of payment . The appellant left with Carpentier at 4:00 p.m. If Pang’s evidence regarding the time the chicken seller returned was correct, the killer could not have been the appellant.
[41] The Crown’s position was that Pang was mistaken about the time the chicken seller returned for the balance of payment, and was either mistaken or deliberately dishonest when he failed to identify the appellant in the photo line-up. If the chicken seller returned before 4:00 p.m., there was no conflict between Pang’s evidence and the testimony of Carpentier.
The Arguments on Appeal
[42] For the appellant, Mr. Wilkinson says that the trial judge erred in omitting to refer to the evidence of Pang’s inability to identify the appellant as the chicken seller, in the W. (D.) instruction provided at trial.
[43] Mr. Wilkinson contends that this evidence, of Pang’s failure to identify the appellant as the chicken seller, was crucial evidence that rebutted the Crown’s contention that the chicken seller was the chicken thief and the killer of Donald Woods. This evidence should have been the subject of a W. (D.) instruction, especially because Crown counsel’s closing address invited the jurors not to rely on Pang’s evidence unless it was confirmed by evidence from another source. Mr. Wilkinson submits that the omission, to which objection was taken at trial, is fatal to the validity of the appellant’s conviction.
[44] For the respondent, Ms. Magotiaux begins with a reminder that there is no sacred formula that a trial judge must follow to instruct jurors on the legal principles that govern the defence advanced, or to relate the evidence to the issues the jury are required to decide. The trial judge is best placed to determine what is required and how best to express it.
[45] Ms. Magotiaux submits that there is no requirement that the W. (D.) formula be slavishly followed in connection with every aspect of the evidence an accused says supports the position of the defence. All that is required is a clear articulation of the burden on the Crown, the standard of proof to be met, and the injunction against simply choosing sides.
[46] Ms. Magotiaux says that, in this case, there were no juxtaposed versions of events that invited an “either/or” choice, or any single piece of evidence that could be isolated for a W. (D.) instruction beyond the appellant’s denial. The instructions here included a statement of the defence position, as it was drafted by trial counsel, that emphasized that the evidence of Pang and Carpentier in combination meant that the appellant could not have killed the deceased. Further, in his re-charge, the trial judge directly linked Pang’s failure to identify the appellant to reasonable doubt. As a whole, the charge, which included several W. (D.) instructions, was fair, balanced, and left no doubt about who bore the burden of proof and what was required to satisfy it.
The Governing Principles
[47] Several basic principles inform our decision on this ground of appeal.
[48] First, we are to take a functional approach in our review of the instructions that were given, not an idealized approach to those instructions that might have been given: R. v. Jacquard, 1997 CanLII 374 (SCC), [1997] 1 S.C.R. 314, at para. 32; R. v. Cooper, 1993 CanLII 147 (SCC), [1993] 1 S.C.R. 146, at pp. 163-164. We test the instructions against their ability to fulfill the purposes for which they are given, and not by reference to their adherence to or departure from some specific approach or formula: R. v. MacKinnon (1999), 1999 CanLII 1723 (ON CA), 132 C.C.C. (3d) 545 (Ont. C.A.), at para. 27.
[49] Second, the suggested instruction in W. (D.) is not a sacrosanct or sacred formula as the decision itself points out: R. v. W. (D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742, at p. 758; R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at paras. 20 and 23; R. v. Simon, 2010 ONCA 754, 104 O.R. (3d) 340, at paras. 82-84. Failure to parrot the precise language of the W. (D.) formula is not fatal, provided the charge, read as a whole, makes it clear that the jury could not have laboured under any misapprehension about the placement of the controlling burden, and the substance of the standard of proof that governed their deliberations: W. (D.), at p. 758; Simon, at para. 82.
[50] Third, the W. (D.) instruction, or its functional equivalent, is not limited to an accused’s testimony or statement admitted at trial, rather it extends to other exculpatory evidence that emerges during trial proceedings: R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197, at paras. 113-114.
[51] Fourth, the purpose of the W. (D.) instruction or its functional equivalent is to ensure that the jury understands how to apply the burden of proof to the issue of credibility. The jury must be cautioned that a trial is not a contest of credibility between witnesses, a matter of choosing sides as it were, and that the jurors do not have to accept the defence evidence in full to find the accused not guilty: Van, at para. 23; W. (D.), at p. 757; and R. v. J.H.S., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 9.
[52] Fifth, a trial judge is not required to relate his or her reasonable doubt instruction to specific items of evidence, whether consistent with the defence or the Crown’s theory of the case: R. v. M.R. (2005), 2005 CanLII 5845 (ON CA), 195 C.C.C. (3d) 26 (Ont. C.A.), at paras. 45-46.
[53] Finally, the failure to expressly relate a W. (D.) or equivalent instruction to a particular item of evidence is not fatal, provided that the charge, taken as a whole, makes it clear to the jury that they are to apply the presumption of innocence and the burden of proof to all the evidence adduced at trial: Van, at paras. 22-23; B.D., at para. 120; and R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320, at para. 40.
The Principles Applied
[54] I would not give effect to this ground of appeal.
[55] Taking a functional approach to the instructions that were given, rather than an idealized approach to instructions that might have been given, and reading the instructions as a whole, I am satisfied that the jury was properly instructed on the position of the defence and evidence relevant to and supportive of that position, including the evidence that Pang didn’t pick out the appellant’s photo as the chicken seller. The failure to specifically refer to this evidence in connection with the W. (D.) instruction does not amount to reversible error when account is taken of the charge as a whole.
[56] The appellant’s complaint is one involving non-direction, an omission or failure to include within a W. (D.) instruction reference to evidence said to be supportive of the appellant’s defence, a denial of participation. The complaint fails for several reasons.
[57] First, a trial judge is not required to give a W. (D.) instruction, or its functional equivalent, in connection with every aspect of the evidence adduced at trial upon which an accused relies: Simon, at paras. 82-84, and 89-90; B.D., at para. 114, M.R.; at para. 46; and R. v. Chenier (2006), 2006 CanLII 3560 (ON CA), 205 C.C.C. (3d) 333 (Ont. C.A.), at paras. 374-375.
[58] Second, as Van explains, the failure to include within a W. (D.) instruction a specific item of evidence does not always amount to reversible error: Van, at para. 22. The purpose of a W. (D.) instruction is to ensure that the jury understands how to apply the burden of proof to the issue of credibility. The jury must appreciate that a criminal trial is not a contest of credibility between or among witnesses. They must also understand that they do not have to accept the defence evidence in order to acquit: Van, at para. 23. Provided the instruction as a whole makes these principles clear, the jury has been properly instructed.
[59] In this case, the instructions on reasonable doubt were compliant with Lifchus on the standard of proof. The directions explained that a reasonable doubt could arise because of a lack of evidence. The jury was told several times that, because the Crown’s case was based entirely on circumstantial evidence, they could find the appellant guilty only if they were satisfied beyond a reasonable doubt that the appellant’s guilt was the only reasonable inference to be drawn from the proven facts. The W. (D.) instruction in association with the appellant’s statement was repeated several times. Any deficiency that there may have been because of the trial judge’s failure to expressly include Pang’s failure to identify the appellant in the W. (D.) portion of the charge was more than compensated for by the balance of the charge.
[60] Third, the trial judge made specific reference to Pang’s evidence when reviewing the position of the defence. He told the jury:
And even more importantly, Mark Pang did not identify Paul Cyr as the person whom he purchased the chicken from. Although he was sure he would be able to identify the person again from a photograph, when presented with the same line-up that Donald Carpentier was presented with, he did not identify Paul Cyr. This is direct evidence that Paul Cyr is not Donald Woods’ killer. This evidence is sufficient, on its own to raise more than a reasonable doubt about Paul Cyr’s guilt.
He reiterated this reference to Pang’s failure to identify the appellant in a re-charge and linked it to the balance of the evidence and the standard of proof required to establish guilt.
[61] It is also worth reminder that Pang’s failure to identify the appellant as the chicken seller cannot be isolated from the formidable case that linked the appellant to Pang’s business, Tai Wah Trade, including nearly two dozen telephone calls from the appellant’s cell phone to the business, contemporaneous with the delivery of an amount of chicken consistent with that carried in Woods’ truck. The calls were all routed through a cell tower near the Tai Wah Trade business premises.
[62] This ground of appeal fails.
Ground #2: Failure to Distinguish Between Rejection and Fabrication of Exculpatory Evidence
[63] The second ground of appeal relating to the charge to the jury also relates to what the appellant advances as a fatal omission from the charge to the jury: the failure to distinguish the difference in evidentiary value between rejection of the appellant’s exculpatory statement and a finding that the statement was fabricated.
The Essential Background
[64] The appellant did not testify at trial. A CD of an audio-taped interview of the appellant on July 12, 2006 by officers of Durham Regional Police Service was entered as an exhibit at trial. The appellant denied meeting Donald Woods on July 21, 2006. He told investigators that he did not kill Woods and didn’t know who had killed him.
[65] At trial, Crown counsel had used the audio-taped interview as part of the Crown’s case and attempted to demonstrate by other evidence that the appellant had fabricated several of his responses to police questions.
The Jury Instructions
[66] The trial judge instructed the jury on evidence of post-offence conduct by the appellant, including what the Crown alleged were falsehoods and fabrications in the audio-taped interview.
[67] In his charge, the trial judge itemized the fabrications alleged by Crown counsel, described the defence position in response, gave a W. (D.) instruction in relation to the appellant’s denial of responsibility, and told the jury that, before finding the appellant guilty on the circumstantial evidence adduced by the Crown, the jury had to be satisfied beyond a reasonable doubt that the appellant’s guilt was the only reasonable inference to be drawn from the proven facts.
[68] The judge explained the difference between disbelief and fabrication of a statement in these terms:
There is a big difference between disbelief of a version of events and fabrication of the same version of events. Disbelief of a version of events does not mean that the version of events was fabricated, not at all. Evidence that leads you only to disbelieve a version of events is not independent evidence that the version of events was fabricated.
Mere disbelief of a statement that Paul Cyr was someplace when the offences were committed means that you treat the evidence as if it had never been given. In other words, ignore it and consider the rest of the evidence in deciding this case.
However, if you are satisfied on the basis of independent evidence that this statement is not just false but was actually fabricated by Paul Cyr, then you must next consider the reason why Paul Cyr fabricated the evidence.
[69] The trial judge summarized the independent evidence relied upon to establish fabrication and concluded his charge on post-offence conduct in these words:
If you find that Paul Cyr fabricated, in other words, made up this version of events because he was aware that he did what is alleged, you must take that finding into account, along with the rest of the evidence, in deciding whether the Crown counsel has proven the guilt of Paul Cyr beyond a reasonable doubt.
On the other hand, if you do not or are unable to find that Paul Cyr fabricated this version of events because he was aware that he did what is alleged, you are not entitled to use this evidence in the way I have described and you must decide the case without its assistance.
If you find that Paul Cyr fabricated this version of events because he was aware that he did what was alleged and as I stated, you must take that finding into account, along with the rest of the evidence, in deciding whether Crown counsel has proven the guilt of Paul Cyr beyond a reasonable doubt. However, this evidence will not assist you in determining whether Paul Cyr committed first degree murder or second degree murder.
The Arguments on Appeal
[70] For the appellant, Mr. Wilkinson begins with the incontrovertible proposition that there is a significant disparity in evidentiary value between an exculpatory statement that is disbelieved and one that is proven false, in other words, shown to be fabricated. Disbelieved evidence has no evidentiary value. Fabricated evidence may constitute circumstantial evidence of guilt.
[71] Mr. Wilkinson says that the error here was that the trial judge muddled the distinction between disbelieved and fabricated evidence. The trial judge failed to adequately explain the meaning of “independent evidence” of fabrication as requiring something beyond mere disbelief of the statement itself. The judge erred further, according to Mr. Wilkinson, in telling the jury that they could infer fabrication from the content of the statement and the circumstances in which it was given. In the end, the jury might have felt entitled to use their disbelief of this statement as evidence of the appellant’s guilt.
[72] For the respondent, Ms. Magotiaux points out that the trial judge repeatedly told the jury that they could not leap from disbelief of the appellant’s denials to an inference or finding of guilt. The trial judge explained that the jurors needed to find independent evidence of fabrication before they could make the findings necessary for any use of the evidence in determining guilt. The judge explained that independent evidence included, but was not limited to, the contents of the statement and the circumstances in which it was made.
[73] Ms. Magotiaux says that the danger inherent in a charge that fails to distinguish between disbelief and fabrication is the risk that a conviction may be grounded on mere disbelief of an accused’s exculpatory statement. But there was no such risk here. The distinction between disbelief and fabrication was explained. The jury was told that they could not find guilt on the basis of disbelief, rather needed to find fabrication due to a particular state of mind before this evidence could be used as an item of evidence in deciding whether the appellant killed the deceased, although not in determining the legal character of his crime.
The Governing Principles
[74] The parties do not differ significantly on the governing principles although they part company on the result of the application of those principles in this case.
[75] The distinction between disbelief and fabrication originated in cases in which the defence advanced was alibi. Those authorities made it clear that, although a disbelieved alibi is of no evidentiary value, a fabricated alibi can constitute evidence from which an inference of guilt may be drawn: R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445, at paras. 57-58; R. v. Coutts (1998), 1998 CanLII 4212 (ON CA), 126 C.C.C. (3d) 545 (Ont. C.A.), at paras. 15-16; and R. v. O’Connor (2002), 2002 CanLII 3540 (ON CA), 62 O.R. (3d) 263 (C.A.), at para. 17.
[76] The same rule applies to other exculpatory statements: O’Connor, at para. 18. In non-alibi cases, it is necessary to have regard to the content of what it is that is disbelieved and the connection of the disbelieved statement to the offence charged: O’Connor, at para. 18.
[77] The purpose of the distinction between disbelief and fabrication is to reduce the risk that the trier of fact, if left unschooled, may blur the need for the Crown to prove the offence charged beyond a reasonable doubt with the failure of the accused to provide a credible defence. Further, the distinction takes into account the danger that the trier of fact may attach undue weight to their rejection of the accused’s explanation, and move too readily from mere disbelief to a finding of guilt: O’Connor, at para. 19; Coutts, at para. 15.
[78] Disbelief cannot form the basis upon which to infer fabrication. A finding of fabrication must be founded on evidence that is independent from the evidence that contradicts or discredits the accused’s version of events: O’Connor, at para. 21; Coutts, at paras. 15-16.
[79] A trier of fact may consider the circumstances in which an accused made an out-of-court statement that is disbelieved as independent evidence to show that the accused fabricated that statement: O’Connor, at para. 24. The circumstances in which a false statement has been made may show an accused’s intent to mislead the police, or to deflect suspicion, and thus be evidence of a conscious knowledge that she or he has committed an offence: O’Connor, at para. 26. If the circumstances in which the statement was made tend to support this conclusion of consciousness, then those circumstances may be used as independent evidence of fabrication: O’Connor, at para. 26.
The Principles Applied
[80] For reasons I will explain, I would reject this ground of appeal.
[81] First, the trial judge did distinguish between disbelief and fabrication in connection with the appellant’s out-of-court statement in which he denied participation in and knowledge of the killing of Donald Woods. The instructions made it clear that disbelief of this statement was not a piece of evidence that the jury could consider in determining whether the Crown had proven the guilt of the appellant beyond a reasonable doubt. Said in a different way, the instruction not only explained the distinction between disbelief and fabrication, but also expressly enjoined the jury from the prohibited chain of reasoning from disbelief to guilt. On these instructions, there was no danger that the jurors would convert their disbelief of the exculpatory statement into proof of the opposite conclusion: participation in the offence.
[82] Second, the instructions on fabrication made it clear that what was required was independent evidence of the falsity of the statement and its actual fabrication. The trial judge emphasized that findings of actual fabrication, and of fabrication due to awareness of involvement in the offence, were essential before the jury could rely on the evidence that the statement had been fabricated, together with the rest of the evidence, in deciding the case. Absent these preliminary findings, the jury was instructed that they could not use this evidence in deciding whether the Crown had proven the appellant’s guilt beyond a reasonable doubt.
[83] Third, the circumstances in which the appellant made this statement to police were capable of sustaining a finding of fabrication and the instructions of the trial judge faithfully recounted the appellant’s position that no such finding should be made.
[84] Fourth, although not fatal, experienced trial counsel for the appellant raised no objection to the trial judge’s charge on this issue.
Ground #3: The Admissibility of the Cell Phone Propagation Maps
[85] The appellant challenges the ruling of the trial judge that permitted Crown counsel at trial to introduce cell phone propagation maps in evidence through the testimony of a radio-frequency engineer employed by Bell Mobility, John Yeh. To frame the discussion of this asserted error, it is helpful to recall the nature of the evidence admitted and the reasons given by the trial judge for admitting it.
The Evidence
[86] As I have indicated, cell phone propagation maps depict the relative coverage areas of cell phone towers located at various places in a geographical area. The maps entered as exhibits show cell phone tower locations activated by the cell phone owned by the appellant at the material time.
[87] When a call is made from a cell phone, the signals bounce off a cell phone tower that is activated by the cell phone. The signal is then transmitted ultimately to the intended recipient’s phone. As a general, but not invariable rule, the signal from the sending cell phone bounces off the tower closest to the party who makes the call. Sometimes, various factors may intercede, such as environmental variables, a large volume of cellular traffic, and large vehicles, with the result that the caller’s signal will be directed to and received by a tower other than the tower closest to the caller.
[88] Cell phone propagation maps do not establish precise locations from which calls have been made, only the general area from which the call originated. The maps are not 100 percent accurate, rather “guesstimates” place their accuracy at between 60 and 80 percent, or possibly even lower. Said in another way, the rate of error maybe 40 percent or more.
The Ruling
[89] At trial, counsel for the appellant acknowledged the logical relevance of the cell propagation map evidence and the expertise of Mr. Yeh to give the evidence, but challenged the legal relevance of the evidence, in particular, the predominance of its prejudicial effect over its minimal probative value.
[90] The trial judge considered that this evidence was expert evidence and applied the principles of R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9, to determine its admissibility. After making reference to several factors discussed in R. v. Melaragni (1992), 1992 CanLII 12764 (ON SC), 73 C.C.C. (3d) 348 (Ont. Ct. G.D.), the trial judge concluded:
All of the records and data upon which the Crown relies is available to the defence and has been disclosed as part of the disclosure process.
Therefore, I find that the general nature of the science underlying the functioning of the cell phone and the cell phone network and the generation of prediction maps are matters of sufficient reliability to be left to the jury. I am satisfied that the proposed evidence meets the criteria for admissibility in Mohan. The evidence is relevant, necessary and offered by a witness sufficiently qualified to be considered an expert and there is no rule that would require its exclusion.
Moreover, I find that there is no prejudice to be occasioned by the evidence. However, if I am wrong on this last point, then I find that whatever prejudice there may be is outweighed by the probative value of the evidence. Therefore, I rule that this evidence is admissible.
The Arguments on Appeal
[91] For the appellant, Ms. Chiodo begins by acknowledging the logical relevance and materiality of this evidence, which she says is expert opinion evidence, thus is subject to the requirements of Mohan and its refinement by R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330, in particular, the application of the cost-benefit analysis to determine its legal relevance.
[92] Ms. Chiodo says that the trial judge erred in his cost-benefit analysis. He misapprehended the probative value of the evidence by overstating the accuracy of the propagation maps and understated its prejudicial effect, a result of its unreliability. He also failed to factor into his cost-benefit analysis the likelihood that jurors would assign disproportionate weight to the evidence because of its expert origins.
[93] For the respondent, Ms. Magotiaux submits that the trial judge properly applied the cost-benefit analysis to conclude that the probative value of the evidence, which was evidence of fact, not expert evidence of opinion, overshadowed its prejudicial effect. The trial judge did not misapprehend the accuracy of the proposed evidence, rather he expressly adverted to the error rate in his analysis. His decision, balancing the relative factors, involves the exercise of judicial discretion and is subject to substantial deference on appeal.
[94] Ms. Magotiaux says that no moral or reasoning prejudice is associated with this evidence, unlike, for example, with evidence of extrinsic misconduct or uncharged similar acts. Further, she contends, in considering the prejudicial effect of evidence tendered for admission, a trial judge should take into account the efficacy of limiting instructions to confine the evidence to its legitimate use as probative material.
The Governing Principles
[95] The admissibility of the cell propagation maps proposed for admission by Crown counsel at trial involves the application of general principles about which there is little controversy.
[96] Evidence that is relevant, material, and not barred by any specific admissibility rule may be excluded under the general exclusionary discretion for which Mohan provides: Mohan, at pp. 20-21. This cost-benefit analysis determines whether the value of the evidence to the correct disposal of the litigation is worth the cost of its introduction to the litigation process: Mohan, at pp. 20-21.
[97] Evidence may be excluded under this cost-benefit analysis if its probative value is overborne by its prejudicial effect, if it involves an inordinate amount of time to present the evidence that is not commensurate with its value, or if it is misleading in that its effect on the trier of fact is out of proportion to its reliability as probative material: Mohan, at p. 21. The reliability/effect balance is of particular importance where the evidence under consideration is expert opinion evidence: Mohan, at p. 21.
[98] Any assessment of the potential benefit to the trial process to be gained by the introduction of the proposed evidence of necessity involves an intrusion into territory that is the traditional preserve of the jury in a criminal jury trial. The trial judge must be scrupulous to ensure that she or he decides only whether the evidence is worthy of jury consideration, not whether the jury should accept and act upon the evidence: Abbey, at para. 89.
[99] Assessment of the prejudicial effect of admitting evidence must also acknowledge the reality of cautions and limiting instructions about the use of evidence received for a limited purpose. Absent alteration of the paradigm of trial by jury, we presume such instructions will be followed by jurors, and evidence of limited admissibility confined within its proper bounds: R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670, at pp. 692-693.
[100] Evidence that a call from a cell phone is likely to register at the tower closest to the caller is evidence of fact, not of opinion: R. v. Hamilton, 2011 ONCA 399, 271 C.C.C. (3d) 208, at paras. 259, 277, and 279. This evidence is subject to limitations: it does not disclose the exact or precise location of a caller, only the general area from which the call originated. More precise evidence may require expert opinion: Hamilton, at para. 280; R. v. Ranger, 2010 ONCA 759, [2010] O.J. No. 4840, at para. 17.
The Principles Applied
[101] This ground of appeal fails for several reasons.
[102] First, the trial judge did not misapprehend the evidence, rather he specifically acknowledged and adverted to its reliability being less than 60 percent.
[103] Second, the trial judge was determining the admissibility of evidence, or more accurately, where the balance between probative value and prejudicial effect settled, in the circumstances of this case. In the absence of a demonstrated error in principle, the trial judge’s determination of where the balance settles is entitled to substantial deference on appeal: R. v. B. (C.R.), 1990 CanLII 142 (SCC), [1990] 1 S.C.R. 717, at p. 733.
[104] Third, the appellant has not identified any error of principle in the trial judge’s cost-benefit analysis. The evidence was not time-consuming. It did not engender moral prejudice. It could prompt no emotional reaction on introduction. It depicted no morally repugnant act. It created no reasoning prejudice, either by distracting jurors from their consideration and determination of the central issues in the trial, or, by itself, creating a profusion of issues with distractive potential.
[105] This evidence was not presented to the jury as anything other than what it was: an item of circumstantial evidence that the jury could consider in deciding whether Crown counsel had proven beyond a reasonable doubt that the appellant killed Donald Woods.
Ground #4: The Admissibility of the Evidence of Test Calls
[106] The final ground of appeal also relates to the admissibility of evidence about cell phone calls, in particular, about the towers involved in transmitting calls made from a cell phone at various locations disclosed by the evidence adduced at trial.
The Essentials of the Evidence
[107] P.C. James Doucette of the Durham Regional Police Service made several calls from a cell phone at times and from places that coincided with various events disclosed by the evidence adduced at trial. The purpose of this re-enactment was to demonstrate that the cell phone records already admitted in evidence, which showed the cell tower activated in calls involving the appellant’s cell phone, were consistent with the test results.
[108] The test calls could not duplicate everything about the original calls. Although the test calls were made from the same locations, at the same time of day, and over the same network as the original calls, they could not replicate the date, the amount of cell phone traffic, or any ambient environmental factors associated with the originals.
The Ruling of the Trial Judge
[109] The trial judge acknowledged the discrepancies between the circumstances of the test calls and those of the original calls, but admitted the evidence of the test calls. The trial judge considered that the evidence was relevant, material and did not offend any exclusionary rule of the law of evidence.
[110] The trial judge assessed the probative value of the evidence, as well as its prejudicial effect, and decided that the balance favoured admissibility, coupled with “a comprehensive and scrupulous” jury instruction to ensure that the jurors did not extend their use of the evidence beyond permitted limits.
The Arguments on Appeal
[111] For the appellant, Ms. Chiodo reinvigorates the argument advanced at trial against admissibility. She submits that the trial judge erred in finding that the test calls sufficiently replicated the originals to make the test results probative on the issue of identity, the critical issue at trial. Further, the trial judge proceeded from a presumption of admissibility, she says, rather than determining admissibility based on balancing of the probative value of the proposed evidence against its prejudicial effect.
[112] Ms. Chiodo submits that the trial judge erred in his assessment of the prejudicial effect of the proposed evidence by measuring prejudicial effect, not as an inherent quality of the evidence, but rather as attenuated by limiting instructions. In the result, Ms. Chiodo argues, the trial judge failed to fulfill his gatekeeper function in connection with this evidence and erred in admitting it.
[113] For the respondent, Ms. Magotiaux says that this evidence was evidence of observed facts, not expert evidence subject to the rigours of Mohan. The evidence was relevant, material, and contravened no specific admissibility rule, including the discretion that permits exclusion of evidence the probative value of which is overborne by its prejudicial effect.
[114] Ms. Magotiaux contends that the trial judge accurately gauged the probative value of this evidence. He recognized its limitations and appreciated that it was simply an item of circumstantial evidence, to be considered along with the rest of the evidence, in determining whether the Crown had proven beyond a reasonable doubt that the appellant killed Donald Woods. Further, Ms. Magotiaux says, the trial judge properly considered the impact of limiting instructions when assessing the prejudicial effect of the evidence. Antidotes to prejudice are properly considered in assessing the prejudicial potential of evidence tendered for admission.
The Governing Principles
[115] Several principles of general application and others relating to the admissibility of “experiment” evidence inform the decision in connection with this ground of appeal.
[116] To begin with first principles, a witness’ testimony about observed facts must be relevant and material. Satisfaction of these requirements will result in reception of the evidence unless its exclusion is justified on some other ground: R. v. Collins (2001), 2001 CanLII 24124 (ON CA), 160 C.C.C. (3d) 85 (Ont. C.A.), at para. 18. Relevant and material evidence may be excluded by the operation of a specific evidentiary rule, like the rule against hearsay, the opinion rule, and the rule against similar acts and extrinsic misconduct: Collins, at para. 19.
[117] Second, apart from these specific admissibility rules that are exclusionary, evidence that is otherwise relevant, material and compliant with these specific evidentiary rules, may be excluded in the exercise of the trial judge’s general exclusionary discretion to safeguard the fairness of the trial: Collins, at para. 19. The exercise of this discretion involves a cost-benefit analysis to determine whether the cost to the litigation process of receiving the evidence exceeds the benefit to be gained in the correct disposal of the litigation: Collins, at para. 19; Mohan, at p. 21.
[118] Third, the law of evidence distinguishes fact from opinion. Generally, witnesses testify only about observed facts. The trier of fact draws inferences from those facts. An opinion is an inference from observed facts. Lay witnesses can give opinion evidence only on issues that do not require special knowledge and where it is virtually impossible to separate the facts from the inferences based on those facts: Collins, at para. 17.
[119] Fourth, “experiment” evidence that is relevant and material is generally received in criminal trials. No specific admissibility rule excludes it, but it, like other evidence, is subject to the general exclusionary discretion of the trial judge described earlier: Collins, at para. 21. Where the evidence requires inferences from observed facts that require special knowledge, the specific exclusionary rule about opinion evidence is engaged and the requirements of Mohan must be met.
[120] Further, in most cases, the relevance of the “experiment” evidence depends upon the degree of consonance between the replication and the original event: Collins, at para. 22; R. v. Nikitin (2003), 2003 CanLII 18062 (ON CA), 176 C.C.C. (3d) 225 (Ont. C.A.), at para. 14.
[121] Finally, where “experiment” evidence has been admitted in a criminal jury trial, the trial judge should provide a comprehensive instruction to the jury about the limitations on their use of this evidence and the factors identified by the defence that might diminish the weight to be assigned to the evidence: Nikitin, at para. 15.
The Principles Applied
[122] For several reasons that I will explain, I would not give effect to this ground of appeal.
[123] First, this evidence was relevant, material, and contravened no specific exclusionary rule of the law of evidence. Its relevance resided in its tendency to show the general location of the caller when a call was made that was routed through a specific cell tower. The evidence tended to confirm the cell phone records for the appellant’s cell phone, and his relative location when he made each call. His location at various times was a piece of circumstantial evidence, to be considered together with the rest of the evidence, on the issue of whether the Crown had proven beyond a reasonable doubt that he was the chicken seller, and thus the deceased’s killer.
[124] Second, the trial judge considered the degree of similarity between the replication and the original event in reaching his conclusion on admissibility. He recognized the impossibility of perfect replication, but considered that there were sufficient common features, such as time of day, day of the week, location, and service provider, to make it worthwhile to receive this evidence. His balancing of probative value and prejudicial effect, which was untainted by legal error and plainly a conclusion open to him, is entitled to substantial deference in this court.
[125] Third, this evidence did not implicate any specific exclusionary rule of the law of evidence. It was evidence of fact, not evidence of opinion. It required no special knowledge or expertise of the witness who simply made the calls at a specific time and place. The opinion rule had no say on the admissibility issue.
[126] Fourth, the test calls in this case, did not portray a one-sided account of disputed facts: R. v. Walizadah, 2007 ONCA 528, 223 C.C.C. (3d) 28, at paras. 50-51. The calls confirmed cellular telephone records already in evidence by providing a live witness to describe his location when the call was made.
[127] Fifth, although not a factor on the admissibility issue, the record reveals no improper use of this evidence by Crown counsel in his closing address and a scrupulously fair charge to the jury about its limitations. That said, in determining the prejudicial effect of the evidence in the application of the general exclusionary discretion, the trial judge was entitled to consider antidotes to prejudice available in the trial process, foremost amongst them, properly tailored limiting instructions.
[128] Finally, nothing about this evidence engendered any reasoning or moral prejudice.
CONCLUSION
[129] For these reasons, I would dismiss the appeal.
Released: December 27, 2012 (“K.M.W.”)
“David Watt J.A.”
“I agree. K.M. Weiler J.A.”
“I agree. Gloria Epstein J.A.”