CITATION: R. v. Kanagasivam, 2016 ONSC 2250
COURT FILE NO.: CRIM J (P) 697/13
DATE: 2016-04-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen
Colin Henderson and Jacob Sone for the Crown
- and -
Jananthan Kanagasivam, Majurathan Baskaran, Thirumal Kanthasamy and Srimoorthy Pathmanathan
Stephen Morris for Jananthan Kanagasivam Andrew Vaughan for Majurathan Baskaran Peter Zaduk for Thirumal Kanthasamy Christopher Assie for Srimoorthy Pathmanathan
RULING: ADMISSIBILITY OF POWERPOINT PRESENTATIONS
Fairburn J.
Overview
[1] This case involved a 29-count indictment with theft, kidnapping, robbery, use of imitation firearm, and possession of property obtained by crime charges. The counts arose in part from seven different alleged kidnappings coupled with robberies. While the trial started with six accused, four remained at the conclusion of the trial. The trial commenced on September 28, 2009 and the jury returned 61 verdicts on March 18, 2016.
[2] To keep things moving, I gave a number of rulings during the trial with written reasons to follow. These are my reasons respecting two rulings concerning the admissibility of PowerPoint [PPT] presentations.
The Factual Backdrop
[3] Central to this case was an allegation that a group of men were involved in stealing tractors and trailers, containing sometimes highly valuable loads. The contents of the loads ranged from alcohol to cigarettes and beyond. The most valuable load contained cigarettes and had a retail value of $1.6 million.
[4] The Crown alleged that each crime was committed by a group of men. The testimony of the complainants supported this position, seven of whom gave evidence that multiple men were involved in their robberies and kidnappings. The Crown maintained that while the specific individuals involved in committing the offences changed from time-to-time, they functioned within the same general group. The Crown maintained that the accused were part of this group. They were each charged with different combinations and permutations of the offences.
[5] With few exceptions, the defence did not challenge whether the offences occurred. What was largely in dispute in the case was whether the Crown had proven beyond a reasonable doubt that the accused were principals, joint principals or aiders to the crimes. To establish identity, the Crown heavily relied upon cell phone evidence. The Crown contended that there was cell phone evidence supporting the involvement of each accused in the offences with which he was charged. The Crown focused on ten phones that were said to be used by the accused and former accused. The former accused had pled guilty at various points after being charged. Some of them testified at trial.
[6] The cell phone evidence played a significant role in the trial. The Crown led evidence that was said to establish which phone numbers were associated with which accused and former accused. For instance, each of the four accused had phones registered under their own names. As for some of the former accused, they were said to use phones registered under both their own names and alias names. The Crown led evidence of subscriber information. The Crown also led other forms of evidence said to associate numbers to individuals, such as the viva voce testimony of some of the former accused.
[7] The Crown sought to establish four main things with the cell phone evidence: (1) contact between the phones said to be used by the accused and former accused in and around the time of the offences; (2) geographical proximity of the phones to locations relevant to the offences at times proximate to the offences taking place; (3) a symmetrical pattern of movement between various phones at times proximate to when the offences occurred; and (4) a symmetrical pattern of movement between the various phones and events relevant to the offences. The Crown maintained that the inferences available from the cell phone evidence provided some circumstantial evidence of identity.
[8] Ms. Kristi Jackson from Rogers Communications and Ms. Patricia McIlveen from Bell Mobility both testified. The Crown focussed Ms. Jackson’s attention on the records for 8 Rogers phones on dates that corresponded to the counts on the indictment. The defence also asked her to focus on a few other phones. As for Ms. McIlveen, the Crown focussed on the records for 2 Bell phones. Their combined evidence took about a week of trial time.
[9] With the use of multiple records, the witnesses testified about select phone activity and the locations of towers used to facilitate that activity. Maps were used to locate the towers of interest in relation to locations relevant to the alleged crimes. For instance, the locations where people were kidnapped from, where they were abandoned and where their empty trailers were later discovered were mapped, along with the locations of cell towers used by phones linked to the accused and their alleged co-perpetrators.
[10] As there were so many different allegations on the indictment, committed on separate dates over an almost 5.5 month period, the amount of phone records filed was enormous. On the consent of all counsel, all of Rogers’ records were filed in electronic format. The electronic records also included those that the defence asked to be included. Select Rogers records were also filed in paper format, including one exhibit containing 37 tabs with phone records for different phones on different dates.
[11] The electronic records also appeared in electronic Excel Spreadsheets and required navigating through multiple tabs in order to piece together information regarding incoming and outgoing calls, the numbers dialled and received, and the geographical locations of towers used. While the paper records did not contain subscriber information pertaining to the phones communicating with the targeted device, the electronic records did contain this information. They also contained the precise geographical locations of the towers used in any given communication. To find this information, it was sometimes necessary to navigate between the paper and electronic records.
[12] As for the Bell Mobility records, they were only filed in paper format. Among other things, it was necessary to flip between records to find the locations of towers used to facilitate calls.
[13] While the witnesses gave viva voce evidence regarding well over 400 entries in the records, and dozens of tower locations, they did not testify about every relevant entry. For instance, I was informed that there were approximately 250 towers that handled cellular phone events from relevant phones on the relevant dates during the relevant times. Had the witnesses been asked to comment on each entry in the records, or asked to place towers associated to each entry on a map, the length of their evidence would have multiplied by a factor of many.
[14] Taking into account the maps that were filed and commented upon in the viva voce evidence, it was estimated that at least another 100 maps would have to be filed in order to plot each of the relevant towers that the Crown said handled cellular phone activity at times and at locations relevant to the various alleged offences. The Crown said that the jury needed to understand what towers were used by what phones at what times because this revealed a consistent pattern of movement between phones at times and at locations consistent with the accused being involved in the offences.
The Originally Proposed PowerPoints
[15] The Crown sought the admission of PPT slides. Among other things, the slides were said to summarize the cell phone records. As the defence raised an objection to the use of the PPTs, an admissibility voir dire was embarked upon.
[16] Mr. Mandeep Sachdeva, an analyst who is the coordinator of the Peel Regional Police Crime Analysis Unit, testified. He prepared 10 PPT presentations corresponding to 10 different dates on the indictment, involving 7 different kidnappings, 1 robbery and 2 thefts. For each of the 10 PPTs, Mr. Sachdeva started by creating a map that included each of the locations of interest to that particular offence. The geographical area covered by the map was selected according to the size required to plot each of the locations of interest.
[17] In some cases, the map had to cover large geographical areas. For instance, on July 27, 2009, a complainant by the name of William Latham left a Whitby LCBO with a large load of alcohol on board his tractor-trailer. He drove it to an Ottawa LCBO. While asleep in his truck, waiting for the Ottawa LCBO to open in the morning, Mr. Latham was robbed and kidnapped, duct taped, and driven to Montreal. Hours later he was abandoned outside of Montreal. His empty trailer was found days later within the city limits of Montreal. The map for this PPT depicted a geographical area covering Whitby to Ottawa to Montreal.
[18] For each of the 10 PPTs, once the necessary size of map was determined, Mr. Sachdeva kept it consistent throughout the PPT presentation. Mr. Sachdeva then plotted what was said to be each event on the maps. Using a chronological approach, he plotted one event per page. The events included phone activity, truck movements, and events significant to the offences, such as where and when a complainant was kidnapped and where and when he was abandoned. Mr. Sachdeva plotted the events in a strictly chronological order.
[19] As for phone events, Mr. Sachdeva plotted tower locations taken from the records that were filed as exhibits at trial. He determined the GPS coordinates of the towers with the use of a software program. On each PPT slide where he plotted a tower location, he included the data corresponding to that phone event, such as subscriber information for the incoming and outgoing call and the date and time of the call.
[20] As for truck movements, where GPS coordinates from the stolen trucks could be determined from documents filed as exhibits at trial, Mr. Sachdeva used these records to plot the truck movements on the PPT slides.
[21] As for events inextricably linked to the offences, such as where and when a kidnapping took place or where and when a complainant was abandoned, the analyst used information provided to him by the officer-in-charge of the case. I was informed by Crown counsel that the times coincided with the evidence that had been given at trial. In many situations, the complainants’ viva voce evidence was relied upon to place the event in what was said to be the correct chronological order.
[22] As it related to the tower and truck GPS coordinates, no objection was raised as to the accuracy of the information placed on each slide. Where the phone records showed a phone changing towers during a call, Mr. Sachdeva testified that he always plotted the tower used at the beginning of the call. As for the information taken from the phone records, such as the time and date of a call or the actual address of a tower, no objection was raised as to its accuracy.
[23] The tower locations were plotted with the use of different coloured dots, each colour corresponding to a different phone. Legends were provided on each slide. Because there are so many phones, up to six coloured dots had to be used just to plot tower locations for phones. As the slides advanced in chronological order, they built on the previous slide. In other words, once information was plotted, it never disappeared. Some of the PPT presentations were hundreds of pages long.
[24] As new tower locations were plotted in chronological order, lines were used to connect the dots between old and new towers. Mr. Sachdeva testified that the most recent event could be identified by the largest dot in the colour associated with the phone. Where more than one phone used a tower, the colour for the last phone using the tower would appear.
[25] Black triangles were used to plot truck movements.
[26] As for the locations of related to the crimes, red dots with numbers in them were used to map them. Importantly, there was no agreement among counsel as to the accuracy of the times for many of the events tied directly to the offences, such as when the kidnappings actually commenced.
[27] It is perhaps easiest to describe the PPTs by showing a sample page. What follows is page 339 of the PPT pertaining to the May 2, 2009 offences involving the kidnapping and robbery of Kamlesh Dave.
[28] The Crown requested that all 10 PPTs be filed as exhibits in both paper and electronic format. They totalled about 1300 pages in length. It was said that the jury could use them on a computer during deliberations. By starting at page 1 of the PPTs and scrolling through them, page-by-page, it was said that the jury could see the chronology of events, understand the phone usage in the case, see the symmetry of movement between phones and see the symmetry of movement between the phones and significant events relevant to the offences.
The Positions of the Parties
[29] The defence objected to the admission of the PPTs. Mr. Assie argued that the PPTs were misleading and should not be filed as evidence. He argued that there was nothing in the PPTs that the Crown had not already filed in other exhibits. The jury should be given nothing more.
[30] Mr. Zaduk agreed and added a particular concern about the fact that the maps on the PPT slides served to distort distances between locations where things occurred and where cell towers are located. Mr. Zaduk added that there would be an imbalance created by the use of the PPTs because, as he submitted, the whole case against his client was in the cell phone records. A PPT demonstration like this would risk the jury being overwhelmed by the cell records and provide what he described as a Crown agenda for a path to guilt.
[31] Mr. Vaughan agreed and argued that the PPTs distorted reality and almost made it look like a GPS device was tracking his client. Mr. Morris adopted all submissions made by other counsel.
[32] The Crown argued that despite the fact that it took a number of days to call the cell phone evidence, only a fraction of the relevant cell phone activity had been testified to. The PPTs contained a complete picture of the locations of cell towers used by relevant phones during relevant times on relevant dates. The Crown maintained that the PPTs should be admitted to assist the jury with understanding the complex body of cell phone evidence and its relevance to the question of identity.
[33] As it related to the truck GPS information, the Crown argued that the jury should be permitted to see how the trucks moved in accordance with the cell tower activity. The Crown argued that this was equally true as it related to the salient events surrounding the offences on the indictment. Only this sequencing of events would allow the jury to understand how all of the evidence fit together.
[34] To assuage the defence concerns that showing the PPTs in evidence would give the Crown what was tantamount to two closing addresses, the Crown was prepared to simply put Mr. Sachdeva on the stand, have him briefly testify about the creation of the PPTs, and then have the PPTs marked as exhibits. The Crown would not go through the PPTs until their closing address.
[35] As a fall-back position, the Crown argued that if they were not permitted to have the PPTs entered as an exhibit at trial, they should be permitted to use them during their closing addresses and have them follow the jury into the jury room. The Crown argued that if it was precluded from providing the maps for the plotting of relevant cell towers, and locations for trucks, then it would call further evidence involving numerous maps to show the locations where certain things occurred, including the locations of about another 200 phone towers.
Initial Ruling
[36] The PPTs as originally created were problematic and I excluded them from evidence and precluded the Crown from using them in its closing address.
[37] We have been living in the age of technology for some time and it has come to define much of what we do and how we do it. The march of technology has played out in all aspects of life. The justice system is no stranger to this reality. Today, technology is used to create evidence, technology is used to gather evidence and technology is used to elicit evidence. The copious cell phone evidence in this trial is an example of these 3 aspects of technology and law at work.
[38] Undoubtedly, technology can be a powerful tool in a criminal courtroom. When used correctly, it can streamline criminal proceedings and allow for easier comprehension of vast quantities of evidence. There is nothing wrong, and much right, with using technology in the courtroom to achieve these laudable objectives. At the same time, we have to ensure that the lure of technology does not serve to overtake long-standing and critically important rules of evidence. Like anything, where technology is used to create evidence for and elicit evidence in the criminal courtroom, we must ask the basis of admissibility. Ultimately, the probative value of the evidence must outweigh its potential prejudicial impact.
[39] The use of PPT in a courtroom is not novel. Indeed, a PPT was used without objection in this case. At the outset of Ms. Jackson’s evidence, she used one to educate the jury respecting the general workings of the Rogers cellular network and the customer records maintained by Rogers. PPT presentations are an important means by which to package and present information. As Heeney J. noted in R. v. Sandham, 2009 58982 (ON SC), [2009] O.J. No. 4517 (S.C.), at para. 22, aff’d on other grounds 2015 ONCA 250, PPT presentations have become a “norm in virtually any class at university”.
[40] Just because PPTs are helpful educational tools, though, does not mean they are admissible in evidence. The basis of admissibility must be explored. Here, the Crown argued that the PPTs were demonstrative aids.
[41] There are different forms of demonstrative or illustrative evidence. Sometimes a chart or summary will be produced to assist the trier of fact with organizing and clarifying evidence already filed. As noted in S.C. Hill et al., McWilliams’ Canadian Criminal Evidence, 5th ed., Toronto: Canada Law Book, 2013 (loose-leaf updated 2015, release 4), at 23:30:60, demonstrative aids are sometimes used to “effectively synthesize…[c]umbersome and confusing evidence”. This type of evidence, such as a schedule or summary, may be admitted to assist the trier of fact in understanding and evaluating evidence already filed. The usefulness of the summary will depend on whether the trier of fact accepts the proof of facts upon which the summary rests.
[42] For instance, in cases where a large body of documents have been filed, a party may wish to have them summarized so that their salient and germane points are teased out: see R. v. Scheel (1978), 1978 2414 (ON CA), 42 C.C.C. (2d) 31 (Ont. C.A.). Using demonstrative aids of this nature can serve to truncate what might otherwise take days of evidence to amplify. It can also ease the jury’s task by abbreviating what could be countless hours spent wading through and distilling data during the fact finding process.
[43] Where evidence has been properly adduced at trial, summaries of that evidence can be prepared to assist the trier of fact with understanding the entire picture represented by the voluminous documents. As noted in Wigmore on Evidence, J.H. Chadbourn rev. (Boston: Aspen Publishers Inc., 1972), Vol. 4, at p. 535:
Where a fact could be ascertained only by the inspection of a large number of documents made up of very numerous detailed statements – as, the net balance resulting from a year’s vouchers of a treasurer or a year’s accounts in a bank ledger – it is obvious that it would often be practically out of the question to apply the present principle by requiring the production of the entire mass of documents and entries to be perused by the jury or read aloud to them. The convenience of trials demands that other evidence be allowed to be offered, in the shape of the testimony of a competent witness who has perused the entire mass and will state summarily the next result. Such a practice is well established to be proper.
See also: S.C. Hill et al., McWilliams’ Canadian Criminal Evidence, at 23:30:60.
[44] Allowing for summaries to be filed, though, does not alleviate the trier of fact from accepting the facts upon which the summary rests. As Martin J.A. warned in Scheel, the usefulness of summaries depends entirely on “the acceptance by the jury of the proof of the facts upon which the summaries are based”: see Scheel, at para. 13.
[45] A demonstrative aid that distils a large amount of information previously admitted in a trial, can serve multiple purposes, which include: (1) promoting trial efficiency; (2) organizing information already received in the trial; (3) decreasing the potential for confusion among the triers of fact; and (4) streamlining the task of the triers of fact.
[46] There is some precedent for a PPT presentation being used to plot cell tower and phone information. In R. v. Hamilton, 2011 ONCA 399, leave ref’d [2011] S.C.C.A. No. 511 (Hamilton), a case involving the heavy use of cell tower location evidence to establish identity, the court commented upon the use of PPTs to summarize the cell phone records. After witnesses from three phone providers testified, and records had been filed, the tower information from the records was distilled into PPT presentations. An officer was put on the stand to testify about the content of the PPTs. The court commented that the jury would have had no difficulty in understanding the cell phone evidence once it had been summarised in PPT format: see Hamilton, at paras. 265, 282.
[47] In long, complex cases, a trial judge has the discretion to allow summaries and aids to go to the jury to assist them with understanding the evidence “reasonably, intelligently and expeditiously”: see R. v Basi, 2010 BCSC 713, at para. 9.
[48] Assistance should be given to a jury where review of the evidence by them would be cumbersome, unduly time consuming, and confusing. Jurors are selected to assess the facts of a case, not so that they can be tested on their abilities to locate needles in haystacks. Any tools that they can be provided to perform their role as fact finders, fairly, with an even hand, and in accordance with the rules of evidence, should be accommodated. As noted by Doherty J.A. in R. v. Poitras, 2002 23583 (ON CA), [2002] O.J. No. 25 (C.A.), at para. 46, albeit in the context of providing written instructions to jurors, “[j]uries need whatever help judges can give them”.
[49] Demonstrative or illustrative aids in the form of summaries of otherwise admissible and admitted evidence are not meant to be tools for advocacy or to paint a picture of one party’s position: see R. v. Myles, [2011] O.J. No. 6686 (S.C.). Rather, they are meant to facilitate juror comprehension of the facts by clarifying and distilling them into a manageable and understandable format.
[50] I found that the originally proposed PPTs contained numerous flaws. While they were meticulously prepared by the analyst, in accordance with instructions given, and with great attention to detail, the end product resulted in something that I found could confuse and potentially mislead the jury.
[51] First, I found the end product somewhat confusing. The sample page set out earlier in my reasons gives a glimpse into what the PPT slides looked like: multiple dots, dots over dots, lines over lines, with no sense of direction, time, or space.
[52] Second, while I am sure that it was entirely unintentional, I agree with defence counsel that the originally proposed PPTs had the potential to be misleading. By way of example, by placing dots over dots, they left the impression that certain accused were at the same place at the same time, when in fact they may have used the same tower minutes and even hours apart. The lines crossing lines left the impression that accused crossed paths during the night or may have even been in the same exact location at the same time. Having so many coloured dots on each slide, ostensibly distinguished in some cases by only slight differences in shade, could leave the jury with a misunderstanding as to which phone was using which tower at which time.
[53] Third, the legends contained on the slides referred to the names of accused that the Crown maintained were using phones on the night in question. As shown on the sample page reproduced earlier in my reasons, a number was always followed by a name. The reality is, though, that there was no telling whether an accused or former accused was using his phone, or even if it was in fact his phone, at the time in question. These things were squarely in dispute in the case, yet the legends on the slides could make it appear that the phones were in fact being used by each of the accused and former accused. While it was open to the jury to draw this inference, it was far from a foregone conclusion. As indicated above, identity was the crucial issue in this trial.
[54] Fourth, the PPTs assumed facts. Beyond creating the visual appearance of assuming what accused were using what phones during a particular event, they also assumed when particular events occurred. Some witnesses were only able to give a window of time within which an event occurred. By placing the events in what was said to be chronological order, assumptions about times were made that did not necessarily accord with fact. Where this occurred, the assumptions accorded more with what the Crown’s position was about the timing of an event. By doing this, in some situations, the PPTs reinforced what was in dispute in the case and what was critically important to the core question of identity.
[55] Fifth, the PPTs gave a complete roadmap to the Crown’s case. By plotting the times that events were said to take place, relative to cell tower usage, truck movement and so on, they gave the jury a window into what the Crown would say (and did say) during its closing address. As noted by Boswell J. in R. v. Pan, [2014] O.J. No. 5969 (S.C.) [Pan 1], who carefully analysed a similar admissibility issue, there is a level of unfairness involved in allowing the Crown two closing addresses: Pan 1, para. 67. Had the PPTs, as they originally appeared, been played for the jury, they would have been tantamount to a closing address.
[56] As above, while the Crown agreed that they would not play the PPTs during the evidentiary portion of the trial, the Crown wanted them marked as an exhibit and to go back to the jury room. Every case is unique. In this case, among other things, given how the PPTs were created and what they depicted, what evidence they relied upon, and what evidence was in dispute, allowing the PPTs in their original format into the jury room would be the equivalent of having the Crown’s closing argument in the jury room during deliberations. In this case, this would not be fair.
[57] The PPTs were ruled inadmissible.
Second PPT Proposal and Ruling
[58] I was informed that the PPTs had been disclosed back in 2011. While the content of the PPTs had changed over time to accommodate newly discovered information, their essential nature did not change from what was originally disclosed. As no objection to the admissibility of the PPTs had been raised until a short time before the Crown proposed to play them, I granted the Crown a brief adjournment to reflect on my ruling and how it wished to respond.
[59] The day following my original ruling, the Crown came back with a new PPT application. The Crown now sought the admissibility of PPTs that focussed on individual phones and their use on specific dates corresponding to the offences. The Crown provided an illustration of what it was seeking to have admitted and asked for an advance ruling. Bearing in mind the stage of the trial, on the eve of the Crown closing its case, I was prepared to entertain this application.
[60] Each PPT started with the phone number, followed by a page setting out the subscriber data for that phone, including customer, name and address information. Focussing in on each offence date, a map large enough to accommodate each location of interest to the alleged offence was chosen. The locations of interest were then plotted on the maps. The addresses were then placed beside the mark identifying the location. No other descriptor was given.
[61] The maps then repeated throughout the PPTs and the addresses of interest remained static on each map. A new slide was created for each time that the phone used a tower. The tower was plotted on the slide using GPS coordinates. Each page containing a tower location was accompanied by text taken from the corresponding records, including the date and time that the tower was accessed, the geographical address of the tower, and the name associated with the numbers for the outgoing and incoming calls. The information was distilled from multiple records, all of which had been filed as exhibits at trial.
[62] The defence maintained an objection to the newly proposed PPTs. The objections were similar to those voiced during the original application. In particular, Mr. Assie continued to advance the submission that the size of the maps served to distort the distance between towers and locations related to the offences, often making them appear closer than they actually were. As for Mr. Zaduk, he continued to express concerns about the undue weight that might be given to the cell phone evidence if the Crown was permitted to play the PPTs during the trial, have them marked as exhibits that would go to the jury room, and then have the Crown close with PPTs as well.
[63] In the end, I found that the probative value of the newly proposed PPTs far outstripped any potential prejudicial impact.
[64] This was a complex case. The issue of identity was central to the jury’s deliberations and the evidence of identity relied heavily upon phone records, including which devices were communicating with which devices, when and where. The phone evidence was lengthy, detailed and microscopic in nature. While a week of court time was spent going through some of the records, the evidence of identity relied upon a far greater volume of records than those specifically targeted for viva voce testimony.
[65] Had the witnesses testified about each relevant entry in the records, I predict that 1 week of trial time would have turned into many weeks of trial time, repeatedly flipping between the phone records and maps. I accept the Crown’s suggestion that something in the range of another 100 maps would have had to be filed to accommodate the few hundred more towers of relevance to the case and the issue of identity. This would have left the jury flipping through multiple maps and records, and piecing them together with the viva voce evidence during their deliberations. This would not only be an unenviable task, but an unwieldy one that could take an alarming amount of time.
[66] It was wholly unnecessary put the jury through this exercise when the records could be distilled for them. As with other cases, this case was not about testing this jury, it was about this jury testing the evidence. Providing them with a tool that distilled the copious records that related to the issue of identity facilitated them in doing so.
[67] The defence took no issue with the accuracy of the plotting of the cell towers on the maps or the information contained on the slides. The new PPTs constituted a demonstrative aid, assisting the jury in understanding the locations of cell towers used. The PPTs also consolidated information drawn from different phone records, including placing names beside the times, dates and locations of calls. The PPTs also showed the general proximity of phones at particular times and the pattern of movement for the phones.
[68] The PPTs would assist the jury in understanding the facts contained within the phone records already admitted in evidence. The PPTs fairly represented the facts contained within the records, with one exception. I ruled that the names located beside the numbers had to be accompanied by the words “subscribed to” or “registered to”. This way the records would not leave the impression that the actual person to whom the phone was registered was making the call.
[69] Any concern that the jury might misinterpret the PPTs by perceiving towers as being closer to locations of interest to an offence could be resolved with cautionary instructions. The concern that the PPTs placed too much emphasis on the cell phone records could also be addressed through (and was addressed through) cautionary instructions.
[70] While the PPTs remained about the same length as those originally proposed, their length was in part a product of the number of charges on the indictment, separate events involved, and amount of phone records that required distillation. By making only one event visible per page, any potential confusion was removed. In addition, by showing the movement of only one phone per PPT, the PPTs became less argumentative in nature. They did not convey one party’s position, but instead focussed on accurately distilling the records filed as exhibits. While there may well be situations where PPTs, or other demonstrative aids, can be used to compare and contrast information arising from various exhibits filed or evidence given, for the reasons set out above, this was not one of those cases.
[71] In addition, the creator of the PPTs, Mr. Sachdeva could be produced as a witness, examined and cross-examined so that the jury could understand how the PPTs were put together and their limitations. By doing this, the defence would have the ability to challenge Mr. Sachdeva in cross-examination and expose any limitations for better juror comprehension.
[72] Among other things, the jury could be and was instructed on the following:
a. That cell phone evidence should not be treated any differently than any of the other evidence in the case. It was simply circumstantial evidence from which inferences could be drawn.
b. That while the PPTs were part of the evidence for the jury to consider, it was for the jury to determine how much or little to rely upon them.
c. That in deciding whether to rely upon them, the jury should have regard to how they were prepared and the evidence upon which they were based.
d. That the dots represent cell tower locations used by phones and do not represent where a phone was at the time that the tower was used.
e. That the tower locations were plotted according to the location when a phone event was initiated and not when it was terminated.
f. That the names on the PPT slides reflect nothing more than the name of the person to whom the phone was registered at the time.
g. That the maps were not intended to suggest any particular distance between a cell tower location and another location. That the jury should not assume simply because a dot representing a tower location was close to or even overlapping with a geographical location, that the two locations were in fact overlapping.
h. That the maps were provided to assist with distilling a large body of evidence so that the jury may more easily understand the contact between phones, the general movement of phones and the general proximity of a phone on certain dates at certain times to certain locations.
i. When considering how much or little to rely upon the PPTs, the jury should consider how the PPTs were made and the evidence upon which they were based.
Conclusion
[73] In the end, the jury needed assistance in distilling the records filed. There were simply too many records to reasonably ask the jury to go through them, line-by-line-by-line, and ask them to then turn between multiple documents to determine locations and subscriber information. The prospect of spending a great deal more court time, delving further into this microscopic evidence, seemed antithetical to concerns over trial economy. In the end, Mr. Sachdeva’s evidence could be (and was) led quickly and efficiently. The evidence would leave the trier of fact with a clear understanding of how the PPTs were prepared and how they should be approached. This could be and was complemented by instructions to the jury about how to approach the PPTs.
[74] The final PPTs did not assume things that the jury had to find as fact. They did not advance one side’s position. Rather, they distilled information that was otherwise admissible and admitted in the trial. It eliminated what would otherwise have necessitated weeks of additional trial time and additional confusion arising from the plethora of records in evidence.
[75] The probative value of the PPTs outstripped any potential prejudicial effect. They were ruled admissible.
Fairburn J.
Released: April 1, 2016
CITATION: R. v. Kanagasivam, 2016 ONSC 2250
COURT FILE NO.: CRIM J (P) 697/13
DATE: 2016-04-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen
- and –
Jananthan Kanagasivam, Majurathan Baskaran, Thirumal Kanthasamy and Srimoorthy Pathmanathan
RULING: ADMISSIBILITY OF POWERPOINT PRESENTATIONS
Fairburn J.
Released: April 1, 2016