Court File and Parties

Court File No.: CRIM J (P) 469/14 Date: 2016 09 30 Superior Court of Justice - Ontario

Re: Her Majesty the Queen v. Steven Browne, Amal Greensword and Adrian Williams

Before: Coroza J.

Counsel: Alex Cornelius and Greg Hendry, for the Crown Anthony Bryant and Anne Marie Morphew, for Mr. Browne; Nicole Rozier and Leah Gensey, for Mr. Greensword; and Maureen Addie and Angela Chaisson, for Mr. Williams

Endorsement

[1] I delivered these reasons orally on September 29, 2016. As noted in court, on the record, I told counsel I would convert the oral reasons into a written endorsement. This decision in writing is to be considered the official version of the ruling and takes precedence over the oral reasons read into record.

Cellphone Evidence Ruling

[1] The Crown has disclosed a PowerPoint from Rogers Communications, two maps tendered at the preliminary hearing and 8 Excel files. I am told that this is the extent of what the cellphone evidence will be in this case.

[2] The Crown proposes to introduce cellphone evidence in the following manner.

[3] First, the Crown will call representatives of telephone companies to introduce cellphone records that are relevant to this case and provide evidence about their business practices, the operation of the cellphone networks and the introduction of the maps which show cellphone sites that appear in a number of the records.

[4] Second, the Crown will call witnesses to identify particular cellphone numbers for the purpose of associating an accused party to that number.

[5] Finally, following the evidence at trial, the Crown will attempt to introduce a modified summary of the raw cellphone records to accord with its theory of the evidence at the trial and replace the phone number on the records with the name of the individual who has testified that the number was their number.

Crown Position

[6] The Crown submits that without a modified summary the jury’s task becomes overly complicated. As set out in paragraphs 4 of his written argument, without this modified summary, Mr. Hendry submits that the jury would face having to review a number of records and painstakingly go through the records line by line.

[7] I have reviewed the objections of each counsel for the accused. In order to keep things moving along, here are my brief rulings on the issues raised by counsel in their written materials.

Analysis

[8] First, I see nothing objectionable about the heading of Slide 4 of the Rogers Presentation. That slide is entitled “Cell Sites of Interest in Proximity to 186 Kingsview Blvd”. In my view, there is no need to edit this slide. I also do not see any need to edit Slide 3 of the Wind Mobile slide. Presumably these are PowerPoints created by the witnesses who will come to court and testify as to the creation of the PowerPoints.

[9] I see very little prejudice to the accused. The witnesses can be cross-examined as to their choice of headings. The jury will be told that any PowerPoint is simply an aid to help them understand the evidence of the witness and that the Crown has used the PowerPoint to help illustrate some of the testimony. The jury will be told that it is the testimony that they must rely on and that the PowerPoint is simply an aid. The jury will be reminded that they must make their findings of fact from the evidence given at trial, not from the PowerPoint. I do not agree with counsel that the title of these slides will influence the jury.

[10] Second, it is my view, that a definitive ruling on the modified summary of the raw cellphone records is somewhat premature. No witness has testified. The proposal of the Crown is to introduce this modified summary at the end of the trial.

[11] However, since the issue has been raised, and it is important to resolve this issue before the Crown begins to create a modified summary of the evidence, it should know whether there are serious questions about the admissibility of such a summary. So my findings relate to the proposal set out by Mr. Hendry in his written argument.

[12] The proposed modified summary will relate to a number of phone numbers. However there are three particular numbers that the Crown will focus on. First, the Crown alleges that 647-862-9200 is a phone number associated with Steven Browne. Second, the Crown alleges that 647-606-9424 is a phone number associated with Amal Greensword. Third, the Crown alleges that 647-531-5184 is a phone number associated with Adrian Williams.

[13] Collectively, counsel for the accused object to the proposal that a modified summary remove the phone numbers and replace them with the name of the accused.

[14] The names would replace the numbers in the summary, the electronic file would have the accused’s name on it and the name of the accused would be included in a legend at the bottom of each edited file.

[15] Counsel for the accused argue that identity is an issue in this case. Furthermore, any association with phone numbers is disputed.

[16] In summary, all counsel argue that references to edited Excel files are highly prejudicial and advocate directly for the acceptance of the Crown’s position.

Legal Principles

[17] I turn now to the applicable legal principles. My colleague, Fairburn J. has recently reviewed some of the principles in R. v. Kanagasivam, [2016] O.J. No. 1932 (SCJ). I have reviewed this judgment carefully. Counsel have helpfully taken me through the relevant passages in their written materials.

[18] A serious concern with any type of summary or other demonstrative aid such as a PowerPoint, is their potential to unfairly influence the jury's decision making, particularly if the aid is created without the participation of the accused.

[19] Because a summary has an immediate visual impact, jurors may be induced to give it more weight than it deserves and, correspondingly, to discount the evidence which has been given at trial and probative of the facts in dispute.

[20] That being said, the jurisprudence is clear that summaries and charts are admissible for organizing and clarifying evidence already filed. Indeed, this has been the law since at least 1978 when the Court of Appeal released the decision in R. v. Scheel, (1978) 42 C.C.C. (2d) 31 (C.A.).

[21] The Court held in that case that summaries, based on evidence which had been properly admitted, were admissible to assist the jury in understanding the entire picture represented by the voluminous documentary evidence.

[22] However, as the Court of Appeal noted, the usefulness of the summary will depend on whether the trier of fact accepts the proof of facts upon which the summary rests.

[23] Ultimately, the use of summaries should be encouraged. However, a trial judge must ensure that the summary cannot overtake the rules of evidence and must be admissible.

[24] It seems to me that the issue here is not whether a summary can be provided to the jury, but whether the summary is misleading or improperly becomes a tool of advocacy for one party’s position. See R. v. Myles, [2011] O.J. No. 6686 (S.C.J.).

[25] The danger increases when the summary depicts not just the undisputed positions of the parties, but only one side's version of disputed facts.

[26] The issue of summaries or other aids is not subject to rigid rules governing the admissibility. As my colleague points out, there is much right with using summaries and technology and there is no presumptive prohibition from using these items in criminal litigation in an era of rapidly changing technology.

[27] The overriding principle should be whether the prejudicial effect of the summary outweighs its probative value. If it does, the summary should not be admitted.

[28] In balancing the prejudicial and probative value of the proposed summary in this case, I take into account relevance, accuracy, fairness, and whether what is summarized can be verified under oath.

Relevance

[29] I take no issue with relevance. Phone records are relevant to this prosecution. The Crown’s case will rely on circumstantial evidence. The Crown will seek to associate the accused with specific phone numbers and rely on communication between cellphones and tower use at the time of the shooting.

Verified Under Oath

[30] I also do not take issue with the fact that the summary can be verified under oath because the Crown proposes to introduce this through a witness who can be cross-examined.

Accuracy and Fairness

[31] Accuracy and fairness are somewhat intertwined in this case.

[32] I find defence counsel’s arguments with respect to accuracy and fairness to be persuasive.

[33] Let me be clear, nothing prevents the Crown from using the proposed modified summary during their closing address to highlight the evidence. I am well aware that there is a live issue as to whether such an aid should then go into the jury room (see R. v. Pan, 2014 ONSC 6055). That issue is not before me.

[34] The issue here is whether the modified summary as proposed by the Crown can be tendered as evidence.

[35] I find that summaries may be admitted into evidence to help the trier of fact understand the testimony of witnesses. Scheel clearly supports the Crown position.

[36] The issue here is whether the use of such a summary crosses the line from admissible evidence to inadmissible argument. In this case, it is my respectful view that the proposed modified summary ventures into the realm of disputed facts. When the disputed fact is something as hotly contested as identification, then accuracy and fairness play a more prominent role in the analysis. Accuracy imports many different factors.

[37] The danger is that that replacing the phone numbers with the name of the accused may distort the reality of the evidence. The Crown wishes to associate the phone number with each accused. While it may be open to the jury to draw the inference based on the admissible evidence tendered at trial, this is not necessarily something they must accept. I am advised it will be a crucial issue in this trial.

[38] If I were to permit a summary replacing the phone numbers with the names of the accused to be tendered into evidence, the jurors would then be given a summary for use in their jury room, tendered as an exhibit that has the potential to overwhelm and create a misleading picture of the phone records. This could only undermine the jury’s ability to fairly determine a crucial fact in the case.

[39] In my view, the proposed summary has some probative value but it is outweighed by the prejudicial effect.

[40] In contrast, a summary tendered for the jury excerpting certain records and numbers is not objectionable as long as it does not amount to impermissible advocacy. The prosecution cannot put its closing address into a neatly packaged, compressed, summary and call it evidence.

Conclusion

[41] The proposed modified summary set out in the Crown’s materials is not admissible as evidence. Nothing prohibits the Crown from using the proposed modified summary as an aid to their closing submissions.

[42] However, should the Crown wish to pursue the admission of a summary based on the decision of R. v. Scheel, here are some guidelines to assist them. It is open to the Crown to renew their application. However, they must do so in a timely manner and if such an application is not timely bearing in mind the different stages of a trial, it may be dismissed summarily.

[43] First, the use of the accused’s name by replacing the alleged number associated with the accused with his name is prohibited.

[44] Second, the accused’s name should not be used in a legend of the summary.

[45] Third, no reference in the summary should be made to briefing notes or some outside source. Arguably this is hearsay. Similarly, references that may be prejudicial such as escort service unless relevant to this trial are to be removed.

[46] Fourth, the electronic file names should not include the name of the accused.

[47] Fifth, with respect to the use of other names such as Success Akonzee and Adeyemi Ogunbitan, I see no difficulty in using names other than the accused in these summaries. However, the use of these names should be qualified in the manner suggested by the Crown at paragraph 5 of his written argument.

Coroza J.

Date: September 30, 2016