Court File and Parties

Court of Appeal for Ontario Date: 20240815 Docket: C68456

Simmons, van Rensburg and Thorburn JJ.A.

Between: His Majesty the King Respondent

And: Nicholas Johnson Appellant

Counsel: Richard Litkowski and Anthony Bryant, for the appellant Deborah Krick, for the respondent

Heard: August 12, 2024

On appeal from the conviction entered by Justice Faye E. McWatt of the Superior Court of Justice, sitting with a jury, on December 11, 2019.

Reasons for Decision

[1] The appellant appeals his conviction for second degree murder. He challenges the trial judge’s decision not to qualify his proposed expert to undertake a process to recover access to his Google account through the release of his Samsung cell phone to the expert mid trial. The purpose of recovering the Google account was to enable the expert to obtain Google location services data relating to the location of the appellant’s phone at the time of the murder.

[2] We would not give effect to this ground of appeal. The request was made mid trial without an application and supporting material that should accompany a request for the release of an exhibit. Nonetheless, the trial judge entertained the application and gave the appellant several opportunities to adduce evidence to support his request.

[3] Although the proposed expert had never previously undertaken the process he proposed using to recover access to the appellant’s Google account, we consider that the appellant may be correct that there was some reasonable possibility that the expert could have succeeded in doing so. We also consider it likely that conditions could have been imposed to ensure that the integrity of the information police had already extracted from the cell phone was not compromised as a result of the proposed process.

[4] Nonetheless, we observe that the appellant’s proposed expert gave no evidence demonstrating his qualifications to provide evidence that could have supported the admissibility of any location services data that might have been gained through access to the appellant’s Google account: see, for example, the expert evidence that was tendered in R. v. Strong, 2021 ONSC 1906, at paras. 84-88.

[5] In the circumstances, we see no basis on which to interfere with the trial judge’s discretionary decision not to qualify the appellant’s expert to undertake the process referred to above.

[6] Accordingly, the appeal is dismissed.

“Janet Simmons J.A.”

“K. van Rensburg J.A.”

“Thorburn J.A.”

Note

[1] The Crown had obtained some location services data for the appellant’s cell phone from Google LLC in California through an MLAT request. However, there was a gap in the data covering the alleged time frame of the murder. It was unclear whether this data existed or whether it had been filtered by the FBI. Google LLC refused to provide any information about its location services data. As a result, the Crown did not lead this evidence at trial.