CITATION: R. v. Kanagasivam, 2016 ONSC 1993
COURT FILE NO.: 83161
DATE: 2016 03 22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
C. Henderson and J. Sone, for the Crown
- and -
JANANTHAN KANAGASIVAM, MAJURATHAN BASKARAN, THIRUMAL KANTHASAMY and SRIMOORTHY PATHMANATHAN
S. Morris, for the Accused, J. Kanagasivam A. Vaughan, for the Accused, M. Baskaran P. Zaduk and C. Martell, for the Accused T. Kanthasamy C. Assie, for the Accused S. Pathmanathan
Ruling: Cell Tower Evidence
FAIRBURN J.
Overview
[1] This case rests on a 29-count indictment involving theft, kidnapping, robbery, use of imitation firearm, and possession of property obtained by crime charges. The counts arise from 7 different alleged kidnappings, coupled with robberies and sometimes imitation firearm offences. The indictment also contains some free-standing theft, robbery and possession of property counts. The offences occurred over a 5.5 month period in 2009. Including pre-trial motions, the trial has taken the same length of time.
[2] While the trial started with six accused and more counts, two accused pled guilty at different points following arraignment and some conspiracy counts were dropped. Because the accused were charged in different combinations and permutations, the jury had 61 verdicts to return. They did that on March 18, 2016.
[3] A great deal of cell phone and cell tower evidence was led. This evidence went to the core issue in dispute in the case: identity. The Crown led evidence of phones, said to be used by the various accused and former accused, accessing cell towers proximate in time and location to the offences.
[4] Witnesses from Rogers Communications and Bell Mobility testified. They gave evidence that, as a general rule, cell phones will access towers with the strongest signal, which is typically the tower that is geographically closest to the phone. They also gave evidence about exceptions to the general rule.
[5] During Mr. Kanthasamy’s closing address, it was suggested that there was a 40 percent error rate when it comes to the general rule. The Crown objected to this submission, arguing that there was no evidence of a 40 percent error rate. For brief oral reasons, I agreed that there was no evidence of an error rate and ruled that the appropriate remedy was to deal with the matter in the Charge. These are my written reasons that I said would follow.
The Contextual Backdrop
[6] Most of the allegations arise out of the kidnappings and robberies of tractor trailer drivers and security guards. In each case, the trucks had trailers full of merchandise that ranged from LG televisions, to beer, to alcohol, to cigarettes and beyond. The most expensive load had a retail value of 1.6 million dollars.
[7] With the exception of one person, whose evidence was led through a police statement, the complainants testified about the circumstances of the offences. They each gave evidence about multiple men having been involved in their robberies and kidnappings. With few exceptions, the accused did not dispute that the offences occurred. What was largely in dispute was whether the Crown had proven beyond a reasonable doubt that the accused were principals, joint principals or aiders in the offences.
[8] The jury heard evidence that the accused, and a few former accused, used certain cell phone numbers. The evidence showed that the phones associated with those numbers accessed cell towers at times proximate to the times of the offences and in locations proximate to locations involved in the offences. While only a small percentage of the witnesses gave cell phone evidence, a good deal of trial time was spent on the evidence.
The Cell Phone Evidence
[9] During pre-trial discussions, the Crown shared how it intended to lead the cell phone evidence. No opposition was raised. On January 4, 2016, the court was informed that there might be some opposition to the Crown’s proposal to lead propagation maps, showing the coverage area for various cell towers. The issue disappeared the following day when the court was informed that there would be no opposition to the Crown’s proposed manner of proceeding. On both January 8 and 12, the Crown provided the court with a roadmap as to how it intended to proceed. No opposition was raised. The cell phone evidence followed.
[10] Two witnesses were called by the Crown: Kristi Jackson from Rogers Communications and Patricia McIlveen from Bell Mobility. A large volume of cell phone records and maps were filed through these witnesses. Their individual and combined evidence can be distilled into the following general propositions.
[11] Cell towers, also referred to as cell sites, have their own designated coverage areas. They will often experience an overlap with the next cell site. Both Rogers and Bell towers are broken into 3 sectors.
[12] As a general rule, a call or text message will go to or come from the cell tower with the strongest signal. This will typically be the tower that is closest to the cell phone, although this is not always the case and exceptions do apply. If the phone does not connect to the closest tower, it will generally attempt to connect to the next closest tower to the phone. Again, this is a general rule. Ms. Jackson testified that the general rule is a matter of “probabilities” and “not certainties”.
[13] There are a number of things that could create exceptions to the general rule. The phone needs a “clear line of sight” to access a particular cell tower. Certain things can create obstructions that may cause a phone to use towers that are not the closest to the phone. For example, people-made objects such as buildings, big trucks with solid sides and heavy cargo, monuments, and bridges could present obstacles that cause phone calls or text messages to use towers other than the ones closest to the phone. Geographical obstructions could also cause this to happen. A tower being at full capacity could also cause a phone to use a tower other than the one closest to the phone.
[14] Both witnesses were clear that cell phone tower information should not be confused with GPS information or triangulation. Locating a tower that a phone is using does not suggest anything about who is using the phone or exactly where the phone is at the time it is accessing the tower. It only shows where the tower is and the tower will only be the closest tower to the phone if an exception to the general rule does not apply.
[15] As for the propagation maps, the Crown filed 15 Rogers maps. They are maps that show the coverage area, divided into 3 sectors, for various cell towers. No Bell Mobility propagation maps were filed.
[16] Ms. Jackson testified that the system is modelled on a circular coverage pattern, but that each site is uniquely engineered and each sector is uniquely shaped because of the outside perimeter. She agreed in cross-examination that the outside perimeter of a coverage area can be very rough and could take on a “blob” like pattern.
[17] It is for this reason that tower coverage areas have what Ms. Jackson described as a small overlap. She was clear that propagation maps do not show this overlap. While according to Ms. Jackson they are a “reasonably accurate depiction” of the area covered by the tower, they should not be taken as “gospel”.
[18] During cross-examination, both Ms. Jackson and Ms. McIlveen were asked about whether they knew a Mr. John Yeh, said to be a Bell Mobility radio-frequency engineer. Neither witness knew Mr. Yeh. They were asked about evidence said to be given by Mr. Yeh in another case. What follows is a summary of the cross-examinations on this point:
(1) It was suggested that Mr. Yeh had said in another case that cell phone propagation maps do not establish the precise locations from where a cell phone call is made and only the general area from which the call originated.
Both witnesses agreed with this statement. Ms. Jackson responded to the suggestion with an emphatic: “absolutely, yes”.
(2) It was also suggested that Mr. Yeh had said in another case that the “maps” are not 100 percent accurate, rather “guesstimates” place their accuracy at between 60 and 80 percent, or possibly even lower.
Ms. Jackson said that she “would have no knowledge of that. I know they are a best case scenario.”
Ms. McIlveen said: “I can’t agree or disagree with that. I wouldn’t have knowledge of that.” She said she did not know the error rate.
(3) As for Ms. Jackson, she was asked whether the error rate may be as high as “40 percent or more.” She responded: “I actually would tend to dispute that, but I don’t have enough knowledge to say absolutely.” The follow-up question was: “so you can’t dispute that the accuracy is sometimes only placed between 60 to 80 percent”. She responded: “I wouldn’t agree or disagree with that statement.”
Closing Address
[19] In Mr. Kanthasamy’s closing address, the following suggestion was made to the jury:
Now we don’t have Mr. Yeh as a witness. But if he’s right, there’s the potential that fully 40 percent of cell phone calls do not, in fact, register on the nearest tower.
And when I asked Ms. Jackson about this, she could not dispute it. All she said was, “That seems high.” When I asked Ms. McIlveen about it, she couldn’t dispute it either. All she could say is, “I can’t say one way or the other.” Is that the kind of evidence upon which you can base proof beyond a reasonable doubt, a 40 percent error rate? [emphasis added]
[20] The Crown took objection to this part of Mr. Kanthasamy’s closing address. The Crown’s position is that there was no evidence of an error rate as neither witness adopted the suggestion put to them in cross-examination.
[21] Mr. Kanthasamy’s position is that while there may have been a slip in terms of summarizing Ms. Jackson’s evidence, the closing was true to the evidence led. Mr. Kanthasamy argued that neither of the witnesses disputed the fact that there is an “error rate” and, therefore, the jury could take into account the fact that there exists an undetermined “error rate”. Counsel argued that it is clear that the “error rate” referred to by Mr. Yeh, whose evidence was summarized by the Court of Appeal, was directly related to the “general rule” that phones use the closest tower and this is how Ms. Jackson and Ms. McIlveen would have understood it.
[22] Mr. Kanagasivam adopted Mr. Kanthasamy’s position. Mr. Baskaran maintained that it was unclear what was meant by an “error rate”, and I should simply review the evidence with the jury. Mr. Pathmanathan took the position that the witnesses implicitly acknowledged an error rate by explaining that there are exceptions to the general rule. The Crown chose not to lead evidence about the accuracy of the phone records and, therefore, there is an undetermined “error rate”.
Where Did the Proposition of An Error Rate Come From?
[23] It appears that the proposition put to both witnesses during cross-examination is taken from the judgment in R. v. Cyr, 2012 ONCA 919. The following can be gleaned from that judgment. Cyr was convicted of first degree murder and theft. Cell phone evidence appears to have figured prominently in his trial.
[24] Mr. John Yeh, a radio-frequency engineer employed by Bell Mobility, testified as an expert witness at Cyr’s trial. Mr. Cyr challenged the admissibility of the expert evidence on appeal.
[25] The judgment contains the court’s brief summary of Mr. Yeh’s evidence respecting a “rate of error”. The summary appears at paragraph 88 of the judgment:
Cell phone propagation maps do not establish the precise locations from which calls have been made, only the general area from which the call originated. The maps are not 100 percent accurate, rather “guesstimates” place their accuracy at between 60 and 80 percent, or possibly even lower. Said in another way, the rate of error may be 40 percent or more. [emphasis added]
[26] In reviewing the governing principles for the admission of cell phone evidence, Watt J.A. commented that evidence that a phone is likely to register at the closest tower is evidence of fact and not opinion. While the evidence does not disclose the exact place where a cell phone is when a call is made or received, it does provide insight into the general area from which a call is made: see para. 100. These comments are consistent with those of the court in R. v. Hamilton et al., 2011 ONCA 399, at paras. 237-40, and 273-80, leave ref’d [2012] S.C.C.A.. No. 547. The comments are also consistent with the viva voce evidence given by Ms. Jackson and Ms. McIlveen.
Decision
[27] There are a few difficulties arising from Mr. Kanthasamy’s closing address. First, the closing contained a suggestion that as much as 40 percent of cell phone calls do not register on the nearest tower: “the potential that fully 40 percent of cell phone calls do not, in fact, register on the nearest tower”. This suggestion was brought home to the jury with the following question: “Is that the kind of evidence upon which you can base proof beyond a reasonable doubt, a 40 percent error rate?”
[28] Even assuming for a moment that propositions put to witnesses can constitute evidence, this was not the proposition put to the witnesses. Rather, the proposition put to both Ms. Jackson and Ms. McIlveen had to do with the accuracy of propagation maps and not the general rule. The suggestion put to them in cross-examination was not that 40 percent of calls do not register on the tower closest to the phone, but that the maps contain a 40 percent or higher error rate. Given that Mr. Yeh did not testify, it is impossible to know what he meant by a 40 percent error rate in a propagation map and whether that might correspond to a 40 percent “error rate” in the general rule.
[29] Moreover, it appears from Cyr that Mr. Yeh was a Bell engineer. There is no telling whether the “error rate” that he testified about in another case would have equal application to Rogers’ towers. Notably, Ms. Jackson, who testified for Rogers, said she would “tend to dispute” the error rate that had been suggested to her.
[30] In the end, though, the problem with the suggestion made to the jury is far more fundamental. Questions are not evidence. Answers are evidence. Questions can only become evidence where the witness adopts the proposition put to them in the question as true. As Moldaver J. recently noted for the court in R. v. Simpson, 2015 SCC 40, at para. 37: “a proposition put to a witness during cross-examination does not constitute evidence of the proposition, unless the witness adopts it as true”. See also: R. v. Skedden, 2013 ONCA 49, at para. 12.
[31] When a proposition is not adopted by a witness, and no other evidence is led to support the proposition, it has no evidentiary value in the trial: R. v. M.B.M., 2002 MBCA 154, at para. 27. Unless a witness adopts a proposition as true, in order for the proposition to become evidence, the party advancing it has to find another way to get it properly before the trier of fact. This can be done by having another witness adopt it or by leading evidence on the point.
[32] There were a few propositions put to Ms. Jackson and Ms. McIlveen. The first had to do with the fact that propagation maps do not establish the precise locations from which calls are made, only the general area from which they originate. Both witnesses agreed with this suggestion. By doing so, the proposition became evidence.
[33] As for the proposition that the propagation maps are not 100 percent accurate, and that “guesstimates” place their accuracy at between 60 and 80 percent, neither witness agreed with or adopted this proposition. Both testified that they did not have enough knowledge to say. When Ms. Jackson was asked about a 40 percent error rate, she said that she would “tend to dispute that”, but again said she did not have enough knowledge to say.
[34] In his review of the “Yeh” related evidence, Mr. Kanthasamy left the impression of a 40 percent error rate: “Is that the kind of evidence upon which you can base proof beyond a reasonable doubt, a 40 percent error rate?” Quite simply, there was no evidence of an error rate in this trial as neither witness adopted the suggestion put to them. As a result of the closing address, there was a real risk that the jury would be confused that there was a 40 percent error rate when it came to cell tower evidence. There was no such evidence. The suggestion left called out for a remedy.
Remedy
[35] Upon hearing the submissions of counsel, rather than highlighting the issue in a corrective instruction prior to the Crown closing, the jury was provided with an instruction about this issue in the Charge.
[36] The evidence of both the Rogers and Bell employees was reviewed in some detail in the Charge. The review included reference to the general rule, as well as a cataloguing of the exceptions to the general rule. The jury was also reminded of the evidentiary rule that they heard at the outset of the trial, that suggestions put in the form of questions are not evidence unless the witness agrees with the suggestions put.
[37] The suggestions put to the Rogers and Bell witnesses, and the answers given to those suggestions, were reviewed. The jury was told that there was no evidence of an “error rate” in the trial, but was also reminded of the many exceptions to the general rule that a phone will access the tower closest to the phone and the fact that cell tower evidence should not be treated as GPS evidence.
FAIRBURN J.
Released: March 22, 2016
CITATION: R. v. Kanagasivam, 2016 ONSC 1993
COURT FILE NO.: 83161
DATE: 2016 03 22
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
- and -
JANANTHAN KANAGASIVAM, MAJURATHAN BASKARAN, THIRUMAL KANTHASAMY and SRIMOORTHY PATHMANATHAN
Ruling: Cell Tower Evidence
FAIRBURN J.
Released: March 22, 2016