R. v. Hong, 2015 ONSC 3700
CITATION: R. v. Hong, 2015 ONSC 3700
COURT FILE NO.: 13325/13
DATE: 20150615
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
TIN WAI HONG, MASON GILLARD-GATZA, NATHANIEL CAIN and RAPHAEL GUERRA
Defendants
Ronald Davidson and Lucas O’Neil, for the Crown
Michael Strathman for Tin Wai Hong
Stephen T. Lyon for Mason Gillard-Gatza
Anthony G. Bryant and Karen E. Symes for Nathanial Cain
David G. Bayliss for Raphael Guerra
HEARD: June 9, 2015
RULING ON demonstrative aids
RESTRICTION ON PUBLICATION: Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
BOSWELL J.
Introduction to the Case and the Issue
[1] Ryan Kennedy watched his last hockey game on October 19, 2011 at the home of his friend, Justin McKelvey. Not long after the game ended, he was bludgeoned to death by one or more of the defendants. They had arrived at Mr. McKelvey’s home, uninvited and unexpected, apparently with the intent to at least rob Mr. McKelvey of money and drugs.[^1] Whether anyone intended to cause death is a live issue in this trial, which is ongoing before a jury in Oshawa.
[2] A pathologist has testified that Mr. Kennedy died of blunt force trauma to the head. No one disputes the cause of death. While identity is not a live issue for trial, culpability is. The identity of the defendant(s) who struck the blows that caused Mr. Kennedy’s death is very much a live issue.
[3] One of the Crown’s main witnesses is Justin McKelvey. It is axiomatic that he is an important witness for the Crown because he is the only compellable eyewitness to the attack that killed Mr. Kennedy. Mr. McKelvey testified that he was unconscious for the initial portion of the attack, but came to in time to see other parts of it. At the time this application arose, he had completed his direct examination and been cross-examined by Mr. Strathman (for Mr. Hong) and Mr. Lyon (for Mr. Gillard-Gatza). Mr. Bryant was just commencing his examination on behalf of Mr. Cain.
[4] At issue is whether it was proper for Mr. Bryant to create a summary of a portion of Mr. McKelvey’s evidence on an easel pad during the course of his cross-examination. Secondary issues are whether the summary ought to be marked as a numbered exhibit and form part of the evidentiary record and/or ultimately go to the jury room as a deliberation aid.
[5] Given the pressing need to keep this long and difficult trial moving forward efficiently, I advised counsel immediately after argument that my ruling was that Mr. Bryant could properly utilize the chart-creating process he proposed during his cross-examination of Mr. McKelvey. I deferred any issues about whether the summary/chart would be marked as a numbered exhibit, or ultimately permitted to go to the jury room, to a later date. I undertook to provide fulsome reasons in writing. These are the reasons.
The Evidence of Justin McKelvey
[6] During his examination-in-chief, Mr. McKelvey testified that he and Mr. Kennedy were sitting in his living room watching sports highlights on television when he was suddenly and unexpectedly struck over the head from behind with a hard instrument. He was knocked out. When he came to he was on the floor several feet from where he had previously been sitting. He said he observed three men in his living room, all wearing dark clothing, with bandanas covering their faces. He described one as having “Asian eyes” (I will refer to him as “M1”); another was white with a slender face (“M2”); the third he was unable to describe in any detail (“M3”).
[7] Mr. McKelvey went on to describe in some detail the actions of each of the three intruders, insofar as he was able to observe them. By his account, M1 and M3 were implicated in some particularly egregious violence.
[8] There is no dispute that the three intruders inside the McKelvey residence were Mr. Hong, Mr. Gillard-Gatza and Mr. Cain. Mr. Hong is Asian; Mr. Gillard-Gatza is white; and Mr. Cain is black. This is not a “whodunit” in the larger sense of that phrase. But who did what to whom remains hotly contested. The credibility and reliability of Mr. McKelvey’s account has been, and will continue to be, vigorously challenged.
[9] According to Mr. McKelvey, when he came to he saw Mr. Kennedy lying on the floor near a water cooler, not quite face down. He was lying on the carpet with his right side elevated somewhat. His left shoulder was touching the carpet and his left arm was underneath him. His face was off of the carpet, with the right side exposed. His right shoulder was slightly lifted off the ground. His right arm was pulled up off of the carpet and pulled back to meet his left arm. His wrists were duct taped together. He was semi-conscious and moaning.
[10] Mr. McKelvey said that at some point M1 barked the general instruction, “shut that fucking kid up”, with reference to Mr. Kennedy’s moans. In response, M3 picked up a heavy pellet rifle and, using two hands, brought the butt end forcefully down into the right side of Mr. Kennedy’s head. Mr. McKelvey said he saw a line of blood appear on Mr. Kennedy’s head, about the same length as the butt end.
[11] The impact of the pellet rifle only made Mr. Kennedy’s moaning louder. According to Mr. McKelvey, M1 took the pellet rifle from M3 and said, “Give me that thing; I’ll show you how to fucking do it”. He then wielded the rifle like a golf club and, holding the barrel, swung the stock into the side of Mr. Kennedy’s head. Mr. Kennedy was silent after that and did not move again.
[12] A forensic pathologist has testified that Mr. Kennedy died of a blow or combination of blows to the head, which resulted in fatal brain damage. He had two significant lacerations to his head, each corresponding to intersecting skull fractures. He also had a bilaterally fractured jaw and numerous other soft tissue injuries to his face. The pathologist could not say which specific blow caused death, or whether it was a combination of blows.
The Impugned Summary/Chart
[13] Mr. Bryant came to a point in his cross-examination where he was exploring Mr. McKelvey’s evidence about who performed what acts during the course of the offences. This is critical evidence, to state the obvious.
[14] Mr. Bryant set up an easel beside the witness box. With marker in hand, he confirmed that Mr. Hong is the Asian-eyed male referred to in Mr. McKelvey’s evidence. He wrote at the top of the easel pad, “Asian = Hong”. He then asked Mr. McKelvey to describe all of the actions he observed Mr. Hong to take during the home invasion. Mr. McKelvey commenced by describing Mr. Hong “sucker punching” him. Mr. Bryant wrote “sucker punched” on the easel pad. Mr. McKelvey then described Mr. Hong swinging the pellet rifle into Mr. Kennedy’s head like a golf club. As Mr. Bryant began to make a corresponding note on the pad, Mr. Strathman rose to object.
[15] Before hearing detailed arguments, I asked Mr. Bryant to describe precisely the process he was intending to follow and the chart he was intending to create. He indicated that he intended to cross-examine Mr. McKelvey about his observations concerning each of the three intruders. He proposed to create a chart of Mr. McKelvey’s observations, divided into three sections for each of the intruders. The first section would record Mr. McKelvey’s description of the intruder. The second section would list the actions that he was certain he observed the intruder perform. The third section would list the actions that he was uncertain about. The chart would look something like this:
Description
Actions (Certain)
Actions (Uncertain)
The Objections
[16] Mr. Strathman’s initial objection related to the use of the heading “Asian = Hong”. He said that it was significantly prejudicial to Mr. Hong. The jury may, he conceded, ultimately conclude that the man described by Mr. McKelvey as having “Asian eyes” was Mr. Hong. But Mr. McKelvey has never directly testified that Mr. Hong was in his house. That finding will be for the jury. There are significant weaknesses, he submitted, in Mr. McKelvey’s descriptions and his evidence generally. It is not a foregone conclusion that he has attributed certain actions to the correct individuals.
[17] Moreover, while Mr. McKelvey agreed that Mr. Hong was the Asian-eyed male he described, he did so only because Mr. Hong is the only Asian person in the prisoner’s dock. His agreement was expressly conditional on the assumption that the police had the right accused in the dock.
[18] Mr. McKelvey’s agreement to the suggestion, “Asian=Hong” is no more than the equivalent of an in-dock identification. In-dock identification has very little, if any, evidential value on its own: R. v. Izzard (1990), 1990 11055 (ON CA), 54 C.C.C. (3d) 252 (C.A.). It has been aptly described as analogous to a police “show up” in which the only person shown to the identifying witness is the very person accused by the police to be guilty of the charges: R. v. F.A., 2004 10491 (ON CA), [2004] O.J. No. 1119 (C.A.) per Cronk J.A., at para. 47. Here, the only Asian person shown to Mr. McKelvey was Mr. Hong, sitting in the prisoners’ dock. He therefore agreed that “Asian=Hong”.
[19] Mr. Bryant conceded Mr. Strathman’s initial objection and agreed to remove the heading, “Asian=Hong”.
[20] Mr. Strathman pressed on, however, with a further and more general objection to the process being utilized by Mr. Bryant. The Crown joined with Mr. Strathman’s position. They advanced several arguments against the exercise, including:
(a) The chart is not, itself, evidence;
(b) The creation of a summary or chart of this portion of Mr. McKelvey’s evidence is not necessary for the jury to understand the evidence. The evidence is neither lengthy nor complex. It could be just as easily adduced orally and understood without resort to any aid;
(c) The creation of the summary involves duplication of evidence; it’s cumulative;
(d) The summary/chart is the equivalent of a mini-transcript of only a portion of Mr. McKelvey’s evidence. It highlights only certain parts of the evidence and, in the result, is unfair;
(e) The process has a tendency to mislead. It is a dramatic presentation that may attract undue weight and it is incomplete;
(f) The probative value of the summary is slight, if any, and is greatly exceeded by the potential for prejudice; and,
(g) It opens the floodgates to all manner of written summaries and charts prepared by counsel with respect to portions of witnesses’ evidence. The result will be an unmanageable morass of mini-transcripts, with the concomitant expenditure of time to create them. From a trial management point of view, these factors are most undesirable.
[21] Mr. Lyon and Mr. Bayliss took no position on the objection.
[22] Ms. Symes and Mr. Bryant argued that the creation of the summary/chart served a number of useful purposes. They submitted that the evidence of Mr. McKelvey is complicated. It has evolved over a number of different statements. It is critical to the determination of the issues in this case. And the issues themselves are complex and difficult.
[23] They asserted that even if there is some duplication in evidence already heard, Mr. Bryant has an unfettered right to canvass areas already covered by other counsel in their examinations. His approach is, they said, a new and different way to organize and clarify the evidence of Mr. McKelvey on these significant points.
[24] They conceded that the chart is intended to advance Mr. Cain’s position, but argued that there is no unfairness in that fact. The chart will be prepared directly in front of the jurors in open court. It will accurately reflect the evidence given by Mr. McKelvey on the points covered during this part of his examination. It is not intended to be a transcript of the entirety of his evidence. It is an organizational tool. The jury will understand that and can be instructed about the care to be taken if and when considering it.
[25] In terms of the floodgates argument, Ms. Symes submitted that the court’s focus should be on this one chart, in this one trial.
The Legal Framework
[26] I canvassed issues relating to the use of demonstrative aids less than a year ago in two companion rulings in R. v. Pan, reported as [2014] O.C.J. 5969 (“Pan 1”) and [2014] O.J. No. 5967 (“Pan 2”).
[27] In Pan 1, I referenced a decision of McLachlin C.J.C. in Mitchell v. Canada (M.N.R.), 2001 SCC 33, [2001] S.C.J. No. 33, where the Chief Justice summarized the basic principles of the law of evidence in Canada. She characterized the law of evidence as being constructed upon flexible principles, which are to be applied purposively to promote truth-finding and fairness. She observed that three simple concepts animate the diverse package of rules that make up our law of evidence. Evidence, she said, must be useful, as a function of proving something relevant in the case. It must be reasonably reliable. And its probative value must not be overwhelmed by its potential for prejudice.
[28] The evidence Mr. Bryant seeks to adduce from Mr. McKelvey is not objected to. All counsel agree that Mr. Bryant is entitled, as part of Mr. Cain’s right to make full answer and defence, to cross-examine in the areas that he intends to summarize in chart form. This is true even if those areas have been thoroughly canvassed already in other parties’ examinations. What is objectionable to some counsel is Mr. Bryant’s attempt to summarize the evidence in writing on an easel pad.
[29] The proposed summary is properly characterized as a demonstrative aid or chart.
[30] The law surrounding the creation and use of charts, summaries and other aids is not fully developed or entirely settled. Some scholars suggest that when counsel tender 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.
(see Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 4th Ed. (Toronto: LexisNexis, 2014) at para. 18.99.
[31] I suggested, in Pan 1, that the four requirements suggested by the authors of The Law of Evidence in Canada, reflect, in essence, the three animating principles of Canadian evidence law articulated by the Chief Justice in Mitchell v. Canada (M.N.R.), as above. In other words, “relevance to a live issue” is the equivalent to “useful” as described by the Chief Justice. “Authentication” and “fair representation” are functions of reliability. Everything else falls within the balancing of probity and prejudice.
[32] In my view, Mr. Bryant’s proposed summary/chart must be assessed by reference to the following questions:
Is it useful? In other words, does it contain relevant and material evidence and is it in a format that will be of some assistance to the jury?
Is it reliable? In other words, has it been prepared carefully and accurately and has it been authenticated by the witness?
Is its probative value greater than its prejudice? This question involves a cost-benefit analysis; an inquiry into whether the value of the proposed evidence to the correct disposal of the litigation is worth its cost to the litigation process: see R. v. Abbey, 2009 ONCA 624. Here, considerations of time consumption, cumulative evidence, and any tendency of the aid to mislead must be considered.
[33] It is notable that what Mr. Bryant was adducing was defence-led evidence, or perhaps better described as evidence of significance to Mr. Cain’s full answer and defence. Such evidence is excluded only where its potential for prejudice substantially outweighs its probative value: R. v. Seaboyer, 1991 76 (SCC), [1991] 2 S.C.R. 577 at para. 43.
Discussion
[34] The creation of summaries or charts, and the use of these and other demonstrative aids during the testimony of witnesses are a familiar part of criminal trials in Canada.
[35] Indeed, Justice David Watt, in Watt’s Manual of Criminal Jury Instructions, 2nd Ed., (Toronto: Thomson Reuters Canada Ltd., 2015) includes two alternate jury instructions relating to charts and summaries: one for those entered as evidence, and one for those not entered as evidence. These draft instructions are attached as Appendices “A” and “B” respectively.
[36] As I indicated above, whether Mr. Bryant’s summary is permitted to be filed in evidence and/or otherwise permitted to go to the jury room are matters deferred to another day. The only issue for determination at this stage was whether Mr. Bryant could prepare the chart during the course of his cross-examination of Mr. McKelvey. I ruled that he could.
[37] In short, I was satisfied that it was useful, that the process was sufficiently reliable, and that its probative value was not substantially outweighed by its risk of prejudice. Let me unpack these conclusions one by one.
Usefulness/Relevance
[38] Messrs. Strathman and Davidson each asserted that the use of a summary/chart during Mr. McKelvey’s evidence was not necessary. I agree with that assertion. Mr. McKelvey’s evidence on the points in issue is very important. It is detailed. But in my view, it is capable of being followed and understood without resort to a summary/chart.
[39] That said, necessity and usefulness should not be conflated. At this stage the test asks about usefulness, as a function of relevance. A tool may be quite useful without being absolutely necessary. Necessity is, as I will describe momentarily, a relevant consideration in the balancing of probity and prejudice. But it is not a factor at this stage of the analysis.
[40] There is no dispute that the evidence being adduced and summarized in chart form is relevant. It is highly relevant and highly probative. Mr. McKelvey’s sequencing of events occurring in his home, and his clarity with respect to certain aspects of those events, has evolved over time. It is important that the jury be clear about what his trial testimony is and about any prior inconsistencies in his recounting of events. This is particularly so because the jury will hear at least two other versions of what happened in the home.
[41] Relevance is generally described in relational terms: the tendency that a particular fact has to make the existence of a material fact more likely than it otherwise would be: see R. v. Cloutier, 1979 25 (SCC), [1979] 2 S.C.R. 709. In this limited sense, one could not argue that the use of a summary or chart is “relevant”. The format used for the presentation of evidence is not a material factor in determining whether the evidence on offer is logically related to a live issue in the case.
[42] The concept of relevance has, however, been used to describe more than just the relationship that one fact may logically have to another. Included in the broad concept of relevance is what is sometimes referred to as illustrative relevance: see R. v. A.D., [2004] O.J. No. 5853 (S.C.J.). In other words, evidence may be admitted in a particular format because the format assists the witness in explaining the evidence, or assists the trier of fact in understanding or evaluating it.
[43] Whether the jury will ultimately receive a copy of the chart in evidence or otherwise is not presently in issue. Irrespective of whether they receive it, in my view, the creation of a summary/chart is a useful method for organizing and clarifying an important area of Mr. McKelvey’s testimony. I am satisfied that the prerequisite of relevance is met.
Reliability
[44] The summary/chart was proposed to be prepared in open court, before the jury. It was to be created on a line-by-line basis, as Mr. McKelvey gave evidence. The entries would be confirmed as accurate by Mr. McKelvey, who would authenticate it.
[45] I am satisfied that threshold reliability is met.
The Balancing of Probity and Prejudice
[46] A demonstrative aid, like a chart or summary, does not have evidentiary value on its own. Its probative value must be assessed as a function of its necessity, its helpfulness, and its usefulness.
[47] Prejudice associated with the use of charts and summaries may arise in a variety of ways, most, if not all, of which were addressed by counsel in argument. These ways may be broadly characterized as trial management (i.e. time and resources) prejudice and trial fairness prejudice.
[48] In the case of Mr. Bryant’s proposed chart/summary, I have already concluded that it is not, strictly speaking, necessary. But I have found that it will be useful as an organizational tool in his cross-examination. It may also be a useful tool for the jury to understand, organize and appreciate the evidence adduced during the examination.
[49] Given that the evidence is not overly voluminous or complex, the probative value – as a function of usefulness or helpfulness – is modest. But it is not non-existent, as the objectors to the process suggested.
[50] In terms of prejudice, I will canvass both trial management and trial fairness concerns.
Trial Management Prejudice
[51] In terms of trial management, this is not a fact situation similar to that present in Pan 1. There, the Crown proposed to introduce into evidence through an OPP analyst, a lengthy PowerPoint presentation of cell phone evidence that had already been adduced through other witnesses. There was not only a cumulative aspect to the evidence, but it would have taken a significant amount of trial time to introduce it. In this case, the time required for Mr. Bryant to prepare his chart/summary through the course of his cross-examination of the witness will be minimal. While there may be a cumulative aspect of the evidence, counsel concede that Mr. Bryant is entitled to question the witness on the proposed areas. Accordingly, the cumulative nature of the evidence is not a determinative factor.
[52] One of the more compelling arguments against the process advocated by Mr. Bryant and Ms. Symes is that it may lead to an intolerable amount of time being spent by counsel preparing all sorts of notes, summaries and charts in the course of examining and cross-examining witnesses. I confess that this “floodgates” argument has troubled me somewhat. I share the Crown’s concern that the examination of witnesses may become a cumbersome and time-consuming exercise in creating mini-summaries, charts and diagrams if counsel have an unfettered right to do so. Indeed, if one counsel creates charts and summaries, others may feel obliged to do so in order to keep pace. In the final analysis, however, the floodgates argument must fail.
[53] Floodgates arguments are process arguments. They are arguments about how a proposed ruling may affect the general workings of the court. They engage general policy considerations.
[54] Essentially, the objectors promoted, as a matter of general policy, a fixed rule - one that would generally prohibit the use of charts and summaries similar to the one proposed by Mr. Bryant. They relied largely on trial efficiency considerations to support that position. The floodgates argument, they said, promotes the imposition of a fixed rule that counsel may not create summaries or charts of evidence during the examination of witnesses. The rationale for the imposition of such a rule is to avoid chaos and promote trial efficiency. It will avoid any confusion about what the limits are to the preparation of summaries, charts, or other demonstrative aids during the course of examinations. It will ensure that courts are not inundated with mini-transcripts and summaries of various portions of witnesses’ evidence.
[55] On the other hand, Ms. Symes argued, in essence, that trial fairness considerations – including the right of Mr. Cain to make full answer and defence – support the application of a flexible rule. That rule should provide for the discretion to determine, on a case by case basis, when demonstrative aids should be permitted. A fixed rule will not make any accommodation for situational fairness. A flexible rule, on the other hand, will allow the court to consider individualized circumstances, and to adapt more readily to changing technologies and culture.
[56] Obviously trial fairness is an organizing principle that informs decisions made by judges about processes utilized by the parties during the course of a trial. At the same time, trial efficiency is an organizing principle of broad application. Efficient trials serve the parties involved in them as well as the administration of justice generally. Fair trials and efficient trials are both valuable social goals. At times, the goals come into conflict with one another.
[57] In my view, there is no genuine conflict between the goals of trial fairness and trial efficiency in this instance. The very reason that summaries, charts, PowerPoint presentations and other demonstrative aids are permitted, if not entirely embraced, is because of their tendency to enhance the efficient presentation of evidence and to aid in its comprehension. In other words, a fixed prohibition against the use of the type of aid proposed by Mr. Bryant and Ms. Symes, does not ultimately promote trial efficiency; it may in fact stand in its way. In this particular instance, trial fairness and trial efficiency considerations both require a flexible, rather than fixed rule.
[58] Flexible rules are far from inherently evil. They do, of course, run the risk of parties testing their limits at times. They inevitably consume more judicial resources than do fixed rules. But in this instance, a flexible rule enhances both efficiency and fairness and is inevitable. Indeed, a flexible rule arguably already exists.
[59] In terms of the parameters of the rule, I have set them out in the Legal Framework section of these reasons. The proper application of the rule will, in my view, serve to prevent the potential chaos warned of by Crown counsel.
[60] In terms of other trial fairness issues, counsel have emphasized the potential of the summary/chart to mislead the jury, or to attract undue weight and attention.
[61] Again, I have reserved a decision about whether the summary/chart goes into evidence, or otherwise gets into the hands of the jury, to a later date. One way or the other, the jury can and will be provided with an instruction about the use they may put the summary to, if any. They will be cautioned not to give undue weight to it. In my view, they are more than capable of understanding that straightforward instruction.
[62] There is otherwise nothing inherently unfair or misleading about what Mr. Bryant proposes to do. As I said, I will be done on a line by line basis, in open court, based on the evidence given by the witness. The jury will see it created. It will be authenticated by the witness before them.
[63] It is, admittedly, a tool to promote Mr. Cain’s interests. But that does not make it unfair. He is under no obligation to promote the interests of anyone else.
[64] In the result, I have concluded that there is no significant prejudice arising from the process proposed by Mr. Bryant. While the probative value to the exercise isn’t high, I am certainly not able to conclude that the prejudice associated with it substantially exceeds that probative value.
Boswell J.
Released: June 15, 2015
Appendix “A”
Mid-Trial 10-B
Charts and Summaries (Admitted as Evidence)
[1] These (This) (specify, for example, charts, summaries, PowerPoint, etc.) have (has) been filed as (an) exhibit(s). It (they) is (are) part of the evidence for you to consider at the end of the case.
Appendix “B”
Mid-Trial 10-A
Charts and Summaries (Not In Evidence)
[1] When we started this case, I told you that nothing the lawyers say is evidence. Neither is anything they provide as a visual aid. To help illustrate or explain some of the evidence given at trial, several charts schedules, summaries (or, describe document) have been displayed. These visual aids were used for convenience. They are not exhibits. They are not evidence in this case. They will not go to the jury room with you. They may have been accurate. They may have contained mistakes. You must make your findings of fact from the evidence given at trial, not from the charts schedules, summaries (or, (specify, for example, charts, summaries, PowerPoint, etc.)) used to help illustrate or explain it.
[^1]: To be clear, only three of the four defendants entered the McKelvey residence. One, Mr. Guerra, drove the other defendants from Scarborough to Minden where Mr. McKelvey lived, but it is not alleged that he entered the residence.