COURT FILE AND PARTIES

COURT FILE NO.: 11-09099G

DATE: 20140818

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 Jeffrey Fisher for Jennifer Pan

Peter Bawden for David Mylvaganam

Edward Sapiano for Eric Shawn Carty

Lawrence Cohen and Erin Dunsmore for Daniel Chi-Kwong Wong

Darren Sederoff and Felice Ferri for Lenford Roy Crawford

HEARD: July 25 and August 11, 2014

ruling on THE use of AN opp power point presentation

boswell j.

[1] This ruling addresses a unified objection made by all defence counsel to the Crown’s proposal to present to the jury, through the Crown’s final witness, a compendium of cell phone records already adduced in evidence earlier in this trial. The compendium was to be presented through the use of a PowerPoint presentation. On August 12, 2014, I ruled that the Crown could not introduce the PowerPoint presentation in evidence. I said I would provide written reasons for the ruling. These are the reasons.

I. OVERVIEW

The Offence

[2] November 8, 2010 no doubt appeared to be a pretty ordinary day to Bich Ha Pan and her husband, Hann Pan. I have some confidence in saying so because the evidence in this case demonstrates that they went about their business in the usual way that day. What they did not know, of course, was that plans were afoot to murder them both. At 10:15 p.m., as Bich Ha watched television in her pyjamas and Hann slept in his bed, three armed men entered their home. Mr. and Mrs. Pan were rounded up, taken to the basement, and shot in the head. Bich Ha died. Hann lived. Some people might say he was lucky to survive considering he was shot through the eye by a bullet from what appears to have been either a .357 Magnum or .38 Special handgun.

The Trial

[3] This is the trial of five of the people the Crown says participated in the planning and execution of the attack on the Pans.

[4] The Pan’s only daughter, Jennifer, is alleged to have been the instigator of the attack; to have contracted the murder of her parents. Her erstwhile boyfriend, Daniel Wong, is said to have provided assistance in the form of identifying someone who had the connections needed to get the job done and by providing general co-ordination. Lenford Crawford is alleged to be the man who had the connections. A colleague of Mr. Wong’s in the local marijuana trade, he is alleged to have retained Mr. Carty and Mr. Mylvaganam to carry out the hit.

[5] The Crown’s case began on March 19, 2014. It wrapped up on August 13, 2014. They proposed to call, as their last witness, Police Constable Paul McCloskey, an operational analyst with the Ontario Provincial Police. PC McCloskey assisted the Crown by assembling a PowerPoint presentation, compiling what the Crown considered to be key pieces of cell phone evidence, together with bits and pieces of other relevant evidence including banking records and surveillance video. It was proposed that PC McCloskey go through the presentation, slide by slide, describing the cell phone evidence in chronological order and demonstrating how it all fit together with other evidence adduced during the trial.

The Objection

[6] Defence counsel objected to the introduction of the PowerPoint presentation on the following grounds:

(a) Fairness. The PowerPoint presentation, they argued, is more or less a summary of the Crown’s theory of the case. Allowing the Crown to present it, on a slide by slide basis through a witness, would amount to giving the Crown a second opportunity to make closing submissions to the jury;

(b) Relevance. The presentation, they said, lacked relevance because it added nothing new in terms of evidence;

(c) Probity. The probative value of the presentation depends, they submitted, on its ability to educate the jurors. And because it omitted so much of the cell phone evidence adduced at trial – anything but those portions that favour the Crown’s theory – its ability to educate (and thus its probative value) was markedly reduced;

(d) Prejudice. The amount of time it would take to introduce the presentation, review it in detail, and challenge it through cross-examination would be grossly disproportionate to its evidentiary value; and,

(e) The Charter. Mr. Cooper argued that disclosure of the presentation was so badly delayed that the defendants’ right to make full answer and defence, as guaranteed by s. 7 of the Charter, was breached. An appropriate remedy for the breach would be, he said, to exclude the presentation from evidence. Crown counsel expressed concern that no Charter application had been served. In fact, they said, the Charter argument was raised only as a “toss in” as part of counsel’s reply argument to the Crown’s submissions. The Crown’s concern is fairly held in my view. For that reason this ruling does not address the Charter argument.

The Ruling

[7] On August 12, 2014, I gave the following brief oral ruling on the defendants’ objections:

(a) The Crown may not tender the OPP PowerPoint presentation in evidence;

(b) The Crown may use the presentation, as it sees fit, in its closing submissions to the jury;

(c) The Crown is to re-disclose to any defence counsel who requests it, the presentation in an unlocked PowerPoint format; and,

(d) The issue of whether the presentation may go to the jury room is deferred to the pre-charge conference.

[8] The following are my reasons in support of the ruling. Before I set out those reasons, however, a brief description of the cell phone evidence adduced during the trial, as well as a brief description of the proposed PowerPoint presentation would be helpful.

II. THE EVIDENCE

The Cell Phone Evidence

[9] A significant element of the Crown’s case against the defendants has involved cell phone evidence.

[10] Not long after the attack occurred in the Pan residence on November 8, 2010, investigating officers began to suspect that Jennifer Pan may have been involved in it. She was arrested on November 22, 2010 after telling Detective William Goetz that she had arranged for someone to come into the home to carry out an attack and that she had facilitated access to the home. She said, however, that she was the intended target; that it was an elaborate suicide plot.

[11] Investigators turned their attention to identifying the other parties involved in the planning and execution of the attack. In the early stages of the investigation, they seized several cell phones used by Ms. Pan and they acquired her phone records by obtaining production orders requiring Bell Cellular and Rogers Wireless to produce records relating to phone numbers utilized by Jennifer Pan in the months leading up to the attack. Through Ms. Pan’s records, the police identified individuals she had been in contact with in the days, weeks and months before November 8, 2010. They then obtained further production orders for the phone records of an ever-widening circle of individuals.

[12] All of the defendants, like so many other Canadians, appear to have been prolific cell phone users. They utilized phones through a number of different accounts and under various subscriber names, sometimes fictitious. The police ultimately obtained extensive call detail records (CDRs) from Telus Communications, Rogers Wireless and Bell Cellular. They also seized cell phones from Ms. Pan, Mr. Wong and Mr. Crawford. They were able to obtain some minimal content of text messages through the forensic examination of the seized phones.

[13] Cell phone evidence was adduced by the Crown for several purposes:

(a) To connect the defendants to one another and to demonstrate their contacts on various dates and times significant to the investigation;

(b) To establish, to the extent possible, the content of discussions involving the defendants. The CDRs provide no direct evidence of the content of phone calls. To a limited extent they do provide the content of text messages. Evidence of content was limited because only Telus retained the content of text messages sent or received by its subscribers in 2010. Bell and Rogers did not; and,

(c) As circumstantial evidence about where particular individuals were at particular times when calls of interest were made. When a cell phone user makes or receives a call, the phone in use will register with a nearby cell tower, thereby connecting the user of the phone to the network. The CDRs include details about cell tower sites utilized with respect to calls made and/or received. The Crown will ask the jury to infer that if a phone registered with a particular tower site at a particular time, then the phone and its user were likely within close proximity to that tower site at the time of the call.

[14] To observe that the cell phone evidence in this case is dense is to observe that Canada’s Boreal Forest is heavily treed. The raw CDRs produced by Telus, Bell and Rogers comprise some 700,000 lines of records. Obviously the Crown needed to find a means to adduce the cell phone evidence in a manageable and comprehendible way.

[15] The Crown proceeded as follows:

(a) First, the evidence was adduced in segments, corresponding to its source. It began with the records from Bell, followed by the records from Telus and then the records from Rogers. Finally, the results of Detective Downey’s forensic examinations of seized cell phones was adduced. For ease of reference, as this ruling unfolds, I will at times refer to Bell, Telus and Rogers as “the telecoms”;

(b) The evidence from each cell phone carrier began with the testimony of a radiofrequency engineer who spoke about the structure of the network and the manner in which cell phones registered to the network. Opinions were given about the likely location of a cell phone, in relation to a known cell tower site, at the time of registration with the network;

(c) Each radiofrequency engineer was followed by a representative from the security department of the same telecom. For instance, the radiofrequency engineer from Bell was followed by a manager of corporate security from Bell. Each of the telecom representatives filed the raw CDRs created and retained by their company;

(d) A compendious review of the CDRs from each telecom was conducted through the representative of each company. Defence counsel sometimes referred to the compendious reviews as a summary of records “cherry picked by the Crown”. At any rate, in each case, a PowerPoint presentation was utilized. The presentations were created as somewhat of a joint venture between employees of the telecom companies and the Crown’s office. They contained records for phone numbers identified by the Crown over specific time periods. For instance, one series of slides may have represented all phone contact that a phone associated to Jennifer Pan had with a phone associated with Daniel Wong on a particular date. The evidence was presented by having the telecom witness work through each slide in the PowerPoint presentation on a more or less line by line basis. In that way, though all of the raw records were filed as exhibits, only the specific records of interest to the Crown were presented in detail.

[16] The cell phone evidence was detail rich and took considerable time to introduce. The evidence of the witnesses from Bell took three days to complete. The Telus witnesses were on the stand for four days. The witnesses from Rogers another four. In addition, Detective Bruce Downey testified for almost three days about the forensic analyses he did on the phones seized from Ms. Pan, Mr. Wong and Mr. Crawford. In total, the cell phone evidence took up almost three full sitting weeks to adduce. Many of the witnesses who followed those from the telecoms were also asked questions about their cell phone use and about specific records in the CDRs.

[17] By the end of the Crown’s case, all of the cell phone records considered relevant by the Crown had been introduced, but in a fragmented way. They had yet to be compiled in a form that would be easier for the jury, not to mention the court, to comprehend. And this is where the OPP PowerPoint presentation came into play.

The OPP PowerPoint Presentation

[18] PowerPoint is a Microsoft Office software product. It is essentially a slide show presentation program. As I indicated, the evidence of the telecom representatives – compendious reviews of CDRs – was adduced through three separate PowerPoint presentations.

[19] The records adduced in evidence through the telecom PowerPoint presentations tend to connect different persons – accused and otherwise – through phone calls and text messages. Calls and texts are interwoven across networks and dates. Visualizing, without assistance, how it all fits together is very difficult. Making sense of who was communicating with whom, in what format, on what dates, and from what locations will be a time consuming and labour intensive task absent some form of aid.

[20] In an effort to assist the jury with their difficult task, the Crown enlisted the assistance of an analyst from the OPP to put together a further compendium of the cell phone evidence from all three telecoms. The OPP analyst produced a presentation that assembled some of the cell phone evidence already adduced through other witnesses, put it into a chronological and user-friendly format, and tied in additional evidence like screenshots from surveillance videos and banking records.

[21] An obvious analogy is that of a jigsaw puzzle. From the Crown’s point of view, the pieces of the puzzle have been introduced into evidence through the PowerPoint-assisted testimony of the telecom representatives. The OPP PowerPoint presentation attempts to put the pieces together, if not comprehensively, then at least sufficiently for the picture to become clear. At least, that is, the picture the Crown is advocating.

The Evidentiary Issues

[22] The defendants’ objections to the admissibility in evidence of the OPP PowerPoint presentation raises the following issues for determination:

(a) Is the PowerPoint presentation evidence?

(b) Is it relevant?

(c) Is it reliable?

(d) Would its introduction into evidence be prejudicial to the defendants or to the trial process generally?

(e) Does the probative value of the presentation exceed any prejudice that would be caused by its introduction in evidence?

(f) Would the introduction of the presentation in evidence affect trial fairness?

[23] In addition to the foregoing issues, Mr. Bawden sought an order that the Crown re-disclose the PowerPoint presentation. It had been disclosed in .pdf format which did not permit him to manipulate it or amend it for his own purposes. He accordingly sought an order compelling the Crown to deliver a copy of the presentation to him in unlocked PowerPoint format (presumably either .pptx or .ppt). I ruled that the Crown is to re-disclose the presentation to any defence counsel who seeks it, in PowerPoint format. At the end of these reasons I briefly explain why.

III. DISCUSSION

The PowerPoint Presentation as Evidence

[24] The Crown has tendered the OPP PowerPoint presentation as evidence. The question that immediately arises is whether the presentation is evidence at all.

[25] “Evidence” is described by Professor David M. Paciocco, now Mr. Justice Paciocco, and Professor Lee Stuesser in The Law of Evidence, 6th Ed. (Toronto: Irwin Law, 2011), as “the data factual decision-makers…use when resolving factual controversies.” The authors go on to observe that the law of evidence “determines what data can be considered, how it can be proved, and the use to which it can be put.” (page 1).

[26] Data may be presented in different forms. Five categories of evidence are identified by Sopinka, Lederman & Bryant in The Law of Evidence in Canada, 4th Ed. (Toronto: LexisNexis, 2014). They are: (1) sworn statements; (2) unsworn statements; (3) things; (4) experiments; and (5) documents. (page 37).

[27] Clearly the PowerPoint presentation is not a sworn or unsworn statement. It is not an experiment. In my view it is not a “thing” as that term might reasonably be conceptualized. “Things” are real evidence: a knife; a bloody t-shirt; a cell phone. If anything, the presentation is a document, though it does not fit neatly with any of the categories identified above. It is really just an illustrative tool; a vehicle by which other evidence is delivered.

[28] If evidence is appropriately defined as data, and I believe it is, then the evidentiary value of the PowerPoint presentation is the data contained within it – its contents. That data has already been tendered as evidence in this case. For the most part, the content was already entered through the telecom PowerPoint presentations. Nothing new is offered in terms of content. The OPP analyst is merely offering the same evidence, organized differently. He has confirmed that he did no analysis on the evidence, and merely assembled entries identified by the Crown as significant.

[29] I have concluded that the OPP PowerPoint presentation is not itself evidence. The contents of the presentation – the dates and times of phone calls and the parties involved, as well as the other bits and pieces of data included in it – are evidence. Evidence that has already been adduced. The PowerPoint presentation is merely a re-organizing of evidence already tendered. It is an illustrative tool designed to demonstrate how some of the evidence adduced earlier in the trial might fit together.

[30] The presentation is a very helpful tool in the illustration of the Crown’s theory of the case. In my view, the jury would likely welcome the availability of such a tool. The question for the court is whether the Crown should be entitled to adduce, for a second time, evidence already presented to the jury, but now through a new, helpful, illustrative aid.

Admissibility

[31] The admissibility of any piece of evidence must be assessed in light of the fundamental principles of the laws of evidence in Canada.

[32] The basic organizing principles of the law of evidence are really quite straightforward. As former Chief Justice Dickson stated in R. v. Corbett, 1988 80 (SCC), [1988] 1 S.C.R. 670, at para. 98,

All relevant evidence is admissible, subject to a discretion to exclude matters that may unduly prejudice, mislead or confuse the trier of fact, take up too much time, or that should otherwise be excluded on clear grounds of law or policy.

[33] These simple organizing principles are meant to give the court flexibility in determining admissibility issues, on a case by case basis, in the interests of justice. Chief Justice McLachlin commented on the basic principles of the law of evidence in Canada in Mitchell v. Canada (M.N.R.), 2001 SCC 33, [2001] S.C.J. No. 33, at para. 30, where she said,

…[T]he rules of evidence are not "cast in stone, nor are they enacted in a vacuum" (R. v. Levogiannis, 1993 47 (SCC), [1993] 4 S.C.R. 475, at p. 487). Rather, they are animated by broad, flexible principles, applied purposively to promote truth-finding and fairness. The rules of evidence should facilitate justice, not stand in its way. Underlying the diverse rules on the admissibility of evidence are three simple ideas. First, the evidence must be useful in the sense of tending to prove a fact relevant to the issues in the case. Second, the evidence must be reasonably reliable; unreliable evidence may hinder the search for the truth more than help it. Third, even useful and reasonably reliable evidence may be excluded in the discretion of the trial judge if its probative value is overshadowed by its potential for prejudice.

[34] Changing technology has created, and will continue to create, opportunities for witnesses to generate and/or present evidence in new and varying forms. For instance, computer simulations and modelling are increasingly finding their way into the courtroom. The tools utilized by experts to conduct experiments, to test evidence, and to explain their findings to juries are constantly evolving. The court is able to meet the challenge of determining the admissibility of evolving types of evidence by adhering to the simple ideas identified by McLachlin C.J.C. as underlying the rules of evidence in Canada.

[35] Rules about the admissibility of non-testimonial, illustrative tools are not yet fully developed in the law. The authors of The Law of Evidence in Canada, 4th Ed., as above at para. 18.99, suggest that when what is on offer is a demonstrative or illustrative tool, something that merely explains or illustrates other admissible evidence, then four criteria must be met as a prerequisite to admissibility:

(a) Relevance to a live issue;

(b) The authenticating witness must identify the tool and testify that it is a fair representation of what it purports to portray;

(c) The demonstration or presentation must not be too time consuming, not misleading, and its probative value must exceed its prejudicial effect;

(d) The underlying evidence must not be cumulative.

[36] The foregoing criteria seem to me to be a restatement of the ideas expressed by McLachlin C.J.C. in Mitchell, as above. Under the circumstances, I intend to simply apply the ideas expressed in Mitchell to the Crown’s proposal to resubmit previously adduced evidence through the OPP PowerPoint presentation. That means I will assess its usefulness, its reliability and its probity in relation to any prejudice that its introduction might engender.

(Decision continues with the remaining paragraphs exactly as in the original judgment.)

Boswell J.

Released: August 18, 2014