COURT FILE NO.: 11-09099G

DATE: 20140602

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Jennifer Pan, David Mylvaganam, Eric Shawn Carty, Daniel Chi-Kwong Wong and Lenford Roy Crawford

Defendants

Jennifer Halajian, Michelle Rumble and Rob Scott for the Crown

Paul Cooper and Holly Chapman for Jennifer Pan
Peter Bawden for David Mylvaganam
Edward Sapiano for Eric Shawn Carty
Laurence Cohen and Erin Dunsmore for Daniel Chi-Kwong Wong
Darren Sederoff and Felice Ferri for Lenford Roy Crawford

HEARD: May 29, 2014

ruling on Application to exclude “game time” text

boswell j.

INTRODUCTION

[1] “To after work ok will be game time.”

[2] This is a murder trial. On November 8, 2010, three armed males entered the home of Hann Pan and Bich Ha Pan in Markham at about 10:15 p.m. They took them to the basement of their home and shot each of them in the head. Bich died. Hann survived. Their daughter, Jennifer, was at home at the time of the attack. She was tied to a bannister upstairs but otherwise unharmed.

[3] Jennifer Pan and four others are now before the court facing a charge of murder and another of attempted murder arising from the attack on November 8, 2010. Jennifer is alleged to have put out a hit on her own parents. Mr. Wong and Mr. Crawford are alleged to have put together the personnel and made all the necessary arrangements. Mr. Carty and Mr. Mylvaganam are alleged to have been directly involved in the hit.

[4] A whole lot of the Crown’s case consists of cell phone records: call data records the Crown says connect the accused, and cell tower records that place some of them in incriminating positions in space and time. In some limited instances the Crown has the actual content of text messages sent and/or received by one or another of the accused.

[5] “To after work ok will be game time” is the content of a single text message sent to Jennifer Pan’s iPhone at about 10:05 a.m. on November 8, 2010, from a phone registered to Lenford Crawford. The text was recovered through a forensic examination of the iPhone. I will refer to it as the “game time text” throughout these reasons.

[6] I set out the content of the game time text in the first paragraph of these reasons on its own. I did so because that is how it was found in Ms. Pan’s phone, on its own, seemingly unconnected to any other existing texts either before or after it.

[7] In this application, Mr. Crawford’s lawyer asks that the text be excluded from evidence in this trial. He submits that there is insufficient, if any, other evidence to give context and meaning to the game time text. Without such evidence the jury will be left to speculate about what the text might have meant. Speculation is impermissible and dangerous. The text, he argues, is more prejudicial to his client than probative and must be excluded.

[8] The Crown opposes the application, arguing that there is ample evidence providing context to the text, that it is relevant, and that it is highly probative of the issue of identity.

THE TEXT IN CONTEXT

[9] At first blush, the crime committed in the Pan residence had the appearance of a random home invasion. As the police investigation proceeded, however, it began to appear that there was nothing random about the invasion at all. On November 22, 2010, Jennifer Pan made a remarkable statement to Detective Goetz of the York Region Police Service. She told him that she wanted to die. She said she had hired people to come into her home for the purpose of killing her. She had let them into the house, but the plan had gone horribly awry. She was unharmed, but her parents both took bullets to the head.

[10] Ms. Pan outlined the basics of the suicide plot to Detective Goetz. She said she wanted to be killed. She needed help. She got a phone number from a friend of a friend. The number was for someone she called “Home Boy”. She got in touch with Home Boy and asked him to kill her. He agreed. He wanted her to let him do it his way. She wasn’t sure exactly what the arrangements were going to be. But she knew it was going to happen on November 8, 2010 because she got a text from Home Boy an hour or two before the invasion telling her “game on”. She told Detective Goetz that she thought she erased the text.[^1]

[11] The police located Ms. Pan’s iPhone in her bedroom. Its SIM card[^2] had been removed and was never recovered. A forensic examination of the phone was undertaken by York Region Detective Constable Bruce Downey. D/C Downey has prepared reports of his findings. He is expected to testify at trial that, amongst other things:

(a) Text messages were saved directly on the iPhone seized from Jennifer Pan;

(b) The saved texts were assigned index numbers by the device, which increased sequentially (e.g. 3303, 3304, 3305, and so on);

(c) Saved messages were extracted by D/C Downey. They reflect sequentially increasing index numbers, but there are many gaps in the index numbers;

(d) The most likely explanation for the gaps is that text messages have been deleted.

[12] The game time text was stored by the iPhone and assigned index number 3192. The device recorded that the text was sent by number 416-838-5696 (“5696”), a phone registered to Lenford Crawford. The iPhone recorded the date of the text as November 8, 2010 and the time as 15:05:02 (UTC). UTC (Co-ordinated Universal Time) is an international time standard. It is a successor standard to Greenwich Mean Time. At November 8, 2010 there was a difference of five hours between UTC time and Eastern Standard Time in Canada. There appears to be no dispute that the local time of the text was approximately 10:05:02.

[13] The next saved text extracted from the iPhone had an index number of 3203. D/C Downey is expected to opine that texts bearing index numbers 3193 through 3202 were deleted. In other words, the ten texts that immediately followed the game time text were deleted from the device and could not be recovered by the police.

[14] A number of texts that immediately preceded the game time text were recovered. There was an uninterrupted string of texts saved on the iPhone and extracted by D/C Downy bearing index numbers 3147 through 3191. Text 3147 was received by the iPhone on November 7, 2010 at 7:02:56 (UTC). In other words, the 43 texts that immediately preceded the game time text were recovered.

[15] Cell number 5696 was a Rogers Wireless account. Rogers’ call data records for 5696 have been entered into evidence. The call data records demonstrate, amongst other things:

(a) 5696 texted 647-519-0820 (“0820”), which was Jennifer Pan’s iPhone, at 10:05:02 on November 8, 2010. There were no other texts exchanged between those two numbers on November 8, 2010;

(b) The game time text was followed by a phone call from 0820 to 5696 at 10:05:38 a.m. which lasted 248 seconds. There was another voice call between the two phones at 1:47:10 p.m., initiated by 0820, which lasted 191 seconds and another at 6:12:16 p.m., initiated by 5696 which lasted 37 seconds;

(c) Prior to November 8, 2010, the 5696 phone last sent a text to 0820 on November 3, 2010 at 3:23:52 p.m.;

(d) Following the game time text, there were no further texts sent between 5696 and 0820 until November 11, 2010 when 5696 sent a text to 0820 at 2:39:31 p.m.. By that time the phone had been seized by the police.

[16] All this is to say that D/C Downey was able to extract a relatively lengthy and uninterrupted string of texts stored on the iPhone prior to the game time text, but his search found that a significant number of texts immediately following the game time text had been deleted. Having said that, the deleted texts do not appear to have been ones involving number 5696. The game time text, therefore, appears to have been a stand-alone text – the only text exchanged between 5696 and 0820 between November 3 and November 11.

[17] Crown counsel concede that the game time text is cryptic, but argue that it is cryptic by design. Its meaning, they urge, is that the home invasion/murder was to take place on November 8, 2010. To support this interpretation they point to a constellation of texts exchanged between several of the accused on November 3, 2010. They argue that the November 3rd texts provide the context necessary to an understanding of the meaning of the game time text sent five days later. In particular, they highlight texts between 5696 and 0820; 5696 and a phone attributed to the accused, Eric Carty (226-234-9382); and one text between a phone attributed to David Mylvaganam (647-884-2773) and 5696.

[18] The specifics of the November 3, 2010 text exchanges are as follows:

(a) At about 12:56 p.m., 5696 sent a text to 9382 saying “Yo bro”. A minute later 5696 added, “U good?”;

(b) At 12:58 p.m., 9382 responded with a text to 5696 saying, “Ya u? jus waiting 2would be nice”;

(c) Subsequently, at 1:16 p.m., 5696 sent a text to 0820 asking, “When is the best time for me to take care of my stuff?”

(d) Within about two minutes, 0820 responded, “Tomorrow 130 in the afternoon for sure. If not I can try late afternoon but not for sure.”

(e) At about 1:59 p.m., 5696 sent another text to 0820 which said, “I need the time of completion. Think about it?

(f) At about 2:05 p.m., 5696 sent a text to 9382 asking, “When do we want to go to work? Today at 7 pm u good”;

(g) At approximately 3:21 p.m., 2773 sent a text to 5696 saying “gusi fo sho”, which I understand will be translated by a Crown expert witness as meaning, “go see for sure”;

(h) Later in the day, at about 3:52 p.m., 5696 received another text from 0820, the content of which was, “Today is a no go. Dinner plans out so won’t be home in time”.

[19] The Crown’s theory is that discussions went on between Ms. Pan, Mr. Crawford, Mr. Carty and Mr. Mylvaganam on November 3, 2010 about the possibility of the invasion/murder taking place that day. The plans were scuttled by Ms. Pan’s text at 3:52. Five days later, however, the game time text was confirmation that the hit would take place that day. Of course, later that day, the murder occurred.

[20] The defence position is that, absent an unfounded assumption that a murder plot was being discussed, the texts referred to by the Crown – and in particular the game time text – are impossible to interpret in any meaningful way that does not involve speculation.

THE LAW

[21] At issue in this application are the following two questions: (1) is the game time text relevant to a live issue in these proceedings; and, (2) if so, does its probative value exceed its prejudicial effect?

Relevance and Probity

[22] To be receivable in a criminal trial, evidence must be relevant, material and admissible: R. v. Candir, 2009 ONCA 915, at para. 46. In Candir, citing Cloutier v. The Queen (1979), 1979 25 (SCC), 48 C.C.C. (2nd) 1 (S.C.C.), Watt J.A. explained that in order “to determine whether an item of evidence is relevant, a judge must decide whether, as a matter of human experience and logic, the existence of a particular fact, directly or indirectly, makes the existence of a material fact more probable than it would be otherwise.”

[23] Relevance is the basic threshold test for admissibility of all evidence. That said, even relevant and material evidence may be excluded where it is forbidden by some specific rule. In this application, Mr. Crawford relies on the court’s general discretion to exclude evidence where its prejudicial effect exceeds its probative value.

Prejudice

[24] Prejudice, for the purpose of assessing admissibility, does not refer to the prospect that evidence may be harmful to the position of an accused. Prejudice, in the context of a probative value/prejudicial effect assessment, is generally described in two categories: reasoning prejudice and moral prejudice: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908. In this application we need only concern ourselves with reasoning prejudice. There is no assertion that admitting the game time text into evidence will create any risk of moral prejudice to Mr. Crawford.

[25] Reasoning prejudice generally describes the risk that a jury may improperly use the evidence in issue, or engage in forbidden reasoning. Also captured within the concept of reasoning prejudice is the risk that a disproportionate amount of time, effort and resources may be directed at the impugned evidence, relative to its value in the trial, though to be clear, there is no concern about disproportionality in this instance.

[26] Mr. Crawford’s counsel relies heavily on the ruling of the Alberta Court of Appeal in R. v. Ferris, 1994 ABCA 20, [1994] A.J. No. 19, affirmed 1994 31 (SCC), [1994] 3 S.C.R. 756. There, the trial judge was faced with an objection to the admissibility of a fragment of an utterance that a police officer heard the accused make during a private call to his father. The accused was charged with murder. While at the police station he asked to make a call to his father. An officer overheard him say, during the call, “…I killed David…”. There was no dispute that the officer had heard just a fragment of the conversation - an alleged admission. Indeed, he had heard only a fragment of one sentence of the conversation.

[27] At issue in Ferris was whether the utterance was capable of being given any meaning by the jury, absent speculation. Because it was clear that additional words were spoken both before and after the incomplete utterance overheard by the officer, it was impossible to ascertain the meaning of the words. It was possible that the accused had said, for instance, “I’m guilty, I killed David.” It was equally possible that he said, “The police are mistaken, they think I killed David, when in fact I had nothing to do with it.” In the absence of any other evidence to put the utterance in context, any attempt to attribute meaning to the utterance inevitably involved speculation. In the circumstances, no weight could be given to the utterance. In other words, it had no probative value. At the same time, the prejudice to the accused was readily apparent.

[28] Conrad J.A., for the majority, described the prejudice to the accused in terms of the risk of forbidden reasoning, saying, at para. 27,

There would be an enormous temptation for any trier of fact to look at the outside evidence that tends to implicate the accused in the murder, use those facts to conclude that the accused probably committed the murder, and that therefore he admitted that he did. That finding would then be used to raise the probability of guilt to a conclusion of guilt. The danger implicit in that type of circuitous reasoning is obvious.

[29] Conrad J.A. ultimately concluded that where it is impossible for a properly instructed jury, acting reasonably, to come to a conclusion as to what an utterance means, the words cannot be logically probative of any fact in issue and are therefore not relevant and admissible.

[30] R. v. Ferris has been followed and applied in a number of Ontario cases, including the Court of Appeal’s ruling in R. v. Hunter, 2001 5637 (ON CA), [2001] O.J. No. 2388. The facts in Hunter are similar to those in Ferris. In Hunter a witness overheard a snippet of a discussion between the accused and his lawyer in the hallway of the Old City Hall courthouse in Toronto. The accused was facing a number of charges including attempted murder, use of a firearm while committing an indictable offence, aggravated assault and others. He was alleged to have pointed a gun at a police officer in the course of a police pursuit. The officer’s evidence was that the accused pointed the gun and pulled the trigger, but that the gun did not fire. During the preliminary hearing, the accused was in the hallway speaking to his lawyer. A passerby overheard him say to counsel, “I had a gun, but I didn’t point it”. The witness could not provide any context to the statement, an alleged admission, which clearly was a fragment of a larger discussion.

[31] Goudge J.A. for the Court of Appeal, following Ferris, held as follows, at paras. 20-21:

When the principles derived from Ferris are applied to this case, I think the evidence must be excluded as it was in Ferris. The only possible relevance of the overheard utterance is if it could be found to constitute an admission by the appellant that he had a gun. Here, as in Ferris, the trial judge found that the overheard utterance had a verbal context, which is unknown and that it was part of a fuller statement. That statement may have been a statement such as "I could say I had a gun, but I didn't point it, but I won't because it is not true" or "What if the jury finds I had a gun but I didn't point it - is that aggravated assault?" Neither would constitute an admission. Indeed, given the reasoning of the trial judge, had these possibilities been pointed out to him he might well have reached a different conclusion.

In my view, without the surrounding words, it would be impossible for a properly instructed jury to conclude that the overheard utterance was an admission or perhaps even what it meant. Clearly its meaning remains highly speculative. The trier of fact would have to guess at the words that came before and after to fix on a meaning. Since its meaning is highly speculative, its probative value is correspondingly tenuous. However, the substantial prejudicial effect is obvious. This balance clearly favours exclusion of the overheard utterance and, as in Ferris, that should have been the result.

[32] The principles to be taken from the Ferris/Hunter line of cases are clear. Jurors are not entitled to speculate or make up theories without evidence to support them. Where it is impossible, absent speculation, to ascertain the meaning of an out-of-court utterance, the words used cannot be relevant to any fact in issue, and therefore will have no probative value. Admitting such an utterance invites the jury to speculate and to engage in forbidden reasoning. Any such utterance must be excluded on the basis that its probative value, which is nil, is outweighed by its prejudicial effect.

DISCUSSION

Admissibility

[33] In my view, the utterance in this case, the game time text, does not fall within the class of utterances that engage the reasoning of the Ferris/Hunter line of cases.

[34] Mr. Crawford’s counsel described the game time text as a fragment of a conversation. I do not agree with that description. The game time text is a stand-alone statement. While cryptic on its face, it appears that it was meant to be understood by its recipient. It was not preceded by any texts from 5696 to 0820 in the four days prior to November 8, 2010. It was not followed by any further texts from 5696. The game time text was a complete thought. Unlike the situation in Ferris or Hunter, there is no risk that the jury will misinterpret the text by reason of fragmentation. That said, it is still necessary that the court be able to conclude that a jury, acting reasonably, will be able to ascertain the meaning of the text without speculating.

[35] The fact in issue that the game time text is said to be relevant to is identity. The Crown asserts that Mr. Crawford – the purported user of the number 5696 – was a participant in the planning and execution of the attack on Mr. and Mrs. Pan. So, the court must make a determination: as a matter of human experience and logic, does the content of the game time text, directly or indirectly, make it more probable than it would otherwise be, that Mr. Crawford was involved in the murder plot? In my view, it does.

[36] A reasonable interpretation of the texts between 5696 and the Carty and Mylvaganam phones (9382 and 2773) on November 3, 2010 is that the user of 5696 – allegedly Mr. Crawford – was organizing something he referred to as “work”, involving Mr. Carty and Mr. Mylvaganam, and was suggesting that it could be sorted for that night at 7 p.m. In addition, it appears the user of 5696 was simultaneously trying to organize something with Ms. Pan: “When is the best time for me to take care of my stuff?” and “I need the time of completion.”

[37] It is certainly not apparent on the face of the texts that the user of 5696 was attempting to organize the home invasion/murder at the Pan residence. Moreover, the proximity of the texts with Carty/Mylvaganam and the simultaneous texts with Ms. Pan does not inevitably lead to the conclusion that there was a connection between them. But it must be said that it does appear that Mr. Crawford – if he indeed was the user of 5696 at the time – was simultaneously attempting to organize some form of activity or activities with Carty/Mylvaganam and Jennifer Pan on November 3, 2010. Whatever was being organized appears to have been scuttled for that day.

[38] It further appears that the game time text was an indication to Ms. Pan that something was going to happen after work that day (November 8, 2010). It is not possible to determine from the game time text alone that it meant a murder was going to take place after work. Put together with the earlier texts from November 3, 2010, however, one reasonable inference is that whatever was being planned on November 3, 2010 was meant to be completed on November 8, 2010. Recall that there were no texts between 5696 and 0820 between November 3, 2010 and November 8, 2010.

[39] The game time text need not, on its own, be conclusive evidence of identity. It is evidence that there was contact between 5696 and 0820 on the day of the murder. It is evidence that something was meant to go ahead that day after work. These facts make it more likely than it would otherwise be without them, that Mr. Crawford was involved in the attack on November 8, 2010. It will be for the jury to determine, if they can, whether it was Mr. Crawford who was using the phone with number 5696 on November 3 and 8, 2010. It will further be for the jury to determine, on the basis of all admissible evidence against Mr. Crawford, whether what was being organized on November 3 and 8 was the attack on Mr. and Mrs. Pan.

[40] In my view, the game time text is not a fragment of a conversation. It is capable of being understood when viewed in the context of the November 3, 2010 texts, and it is probative of the issue of identity. There is little prejudice to Mr. Crawford in the admission of the evidence because of the fact that it is not a fragment of a conversation, as was the case in both Ferris and Hunter. It is a stand-alone utterance. The jury will not need to resort to impermissible speculation to attribute meaning to it. The weight the jury ultimately elects to put on the text will be up to them.

[41] It must be said, as well, that the game time text is unarguably admissible evidence against Ms. Pan. She told Detective Goetz that “Home Boy” texted her and said “game on” an hour or two before the invasion on November 8, 2010. She said that her receipt of the text was how she knew the attack was going to go ahead that day. Obviously the game time text was significantly earlier than one to two hours before the attack. But it was definitely on the same day. And it included language similar to “game on”. In my view, it is significantly probative of Ms. Pan’s involvement in the planning of the invasion. It is consistent in many respects with the statement she made to Detective Goetz on November 22, 2010.

[42] Mr. Crawford wishes to exclude the text from the evidence at trial altogether. As such, he would have to satisfy me that its prejudice to him is so substantial that it outweighs the probative value of the text as evidence against both him and Ms. Pan. I find that he is not able to do so. I am satisfied that the probative value of the game time text as it relates to each of Ms. Pan and Mr. Crawford, individually and/or together, exceeds its prejudice. The evidence is admissible against each of them.

Jury Instruction

[43] Mr. Crawford’s counsel made an alternative request, namely that I give the jury a sharply worded mid-trial instruction about the weakness of the evidence due to it being fragmented and the danger of attributing meaning to the words absent context. I have difficulty with the requested instruction for the following reasons:

(a) I do not find that the game time text was fragmented. I find the opposite. It was a complete utterance;

(b) I am quite uncomfortable providing a caution about the weakness of the evidence on a mid-trial basis. I prefer to wait until my final instructions when the entire evidentiary record will be in place;

[44] I have already given more than one instruction to the jury to be careful about how they interpret cell phone evidence. I have also instructed them several times about the limited admissibility of the out-of-court statements of the accused.

[45] I am prepared, however, to provide an instruction to the jury at the time the game time text is entered into evidence that the jury may not use Jennifer Pan’s statement to Detective Goetz to help them interpret the meaning of the text.

[46] In the result, save for that limited instruction, the application is dismissed.

Boswell J.

Released: June 2, 2014

[^1]: To be clear, Ms. Pan’s statement to Detective Goetz, which has been viewed in its entirety by the jury, is evidence only against Ms. Pan. It is not admissible evidence against Mr. Crawford.

[^2]: “SIM” stands for” subscriber identity module”. A SIM card consists of an integrated electrical circuit embedded into a small plastic card. The card is inserted into a handheld device (i.e. cell phone). It is used to identify and authenticate a subscriber on a mobile (radio frequency) network.