Court File and Parties
COURT FILE NO.: Crim J(P) 1156/15 DATE: 20160629 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – SHELDON RANGLIN Defendant
Counsel: B. McGuire and E. Taylor for the Crown M. Moon and A. Pyper for the Defendant
HEARD: June 6, 2016
Ruling on Defence Proposed Application
Ricchetti J.:
[1] On June 6, 2016, this court advised counsel that the Defence proposed application described below was summarily dismissed with reasons to follow.
[2] These are those reasons.
Background
[3] Mr. Ranglin is charged with the first degree murder of Keith Brissett Jr. on June 7, 2011.
[4] Pre-trial applications were heard commencing May 9, 2016.
[5] The jury was selected on May 18, 19 and 20, 2016.
[6] The evidence in the trial commenced on May 30, 2016.
[7] After ten previous Crown witnesses, the Crown called Mr. Borden as a witness on June 2, 2016. Mr. Borden had originally been charged with the murder of Mr. Brissett but later pled guilty to accessory after the fact. Mr. Borden agreed to testify on behalf of the Crown.
[8] Mr. Borden’s examination in-chief was completed in the afternoon of June 2, 2016. The Defence sought an adjournment until Monday June 6, 2016 to commence his cross-examination of Mr. Borden. The Defence cited certain undescribed last minute disclosure by the Crown that needed to be considered and reviewed. The Crown agreed to the adjournment. This court granted the adjournment.
[9] At 2:24 p.m. on Friday June 3, 2016, Defence counsel advised in writing that he would be contesting the admissibility of “any of the Records so disclosed”. The Defence advised it would be seeking a “Ruling on the admissibility of the records the Crown seeks to tender BEFORE the cross-examination of Mr. BORDEN commences”.
[10] The court re-convened on Monday June 6, 2016. There was no written application by the Defence.
[11] The Defence submitted that it wished to bring a proposed application to exclude evidence. The Defence was asked about the proposed application, including the details of what he sought to exclude and the basis for the exclusion.
The Alleged Three Way Phone call
[12] Mr. Borden testified that, prior to Mr. Ranglin’s preliminary hearing in July 2015, he was asked by Mr. Ranglin’s girlfriend, Ms. Williams, to call her as Mr. Ranglin wanted to speak with Mr. Borden. At the time both Mr. Ranglin and Mr. Borden were in custody; Mr. Ranglin in Maplehurst and Mr. Borden in Hamilton-Wentworth.
[13] Mr. Borden testified that, using a correctional facility public phone, he called a TRAPP line, which connected Mr. Borden’s call to Ms. Williams’ cell phone. Mr. Borden testified he spoke to Mr. Ranglin at that time.
[14] Mr. Borden testified that Mr. Ranglin attempted to get Mr. Borden to retract his prior statements that Mr. Ranglin was the shooter in the Brissett murder. Mr. Borden refused.
The Production Orders for the Alleged three way Phone Call
[15] The “three way phone call” came to the attention of the Crown on or about April 20, 2016. The police investigated the phone call. The Crown disclosed this new evidence to the Defence on April 22, 2016. On April 23, 2016, the Defence inquired whether the Crown was seeking Production Orders to corroborate what Mr. Borden and Ms. Williams had said about the alleged three way phone call. On April 27, 2016, the Crown confirmed it was seeking the Production Orders and intended to rely on that evidence.
[16] The issue of the “three way phone call” was discussed at the judicial pre-trial.
[17] The Production Orders were obtained by the Crown, but given the various names used for the phone lines, some of which appear to be false names and addresses and the need to obtain further production of cell phone records, there was some delay in obtaining the full records showing how the alleged “three way phone call” was accomplished.
[18] Copies of the results of the Production Orders were provided to the Defence on June 2, 2016. Copies of the ITO’s and the police officer’s notes were provided to the Defence on June 3, 2016.
The Mechanics of the alleged Three way Phone Call
[19] Inmate calls from correctional institutions are made through public pay phones. Calls from the pay phones must be collect calls. There is no disagreement that there is some signage near these pay phones that indicate the calls can be monitored or recorded – the exact wording is not clear but the existence of some warning is conceded by Defence.
[20] TRAPP Call provides a service where arrangements are made that, upon calling a specific number, the collect call will be forwarded to a specific telephone number. This permits inmates to make calls to the TRAPP phone number and be connected, via a collect call, to someone’s telephone or cell phone number.
[21] In this case, Mr. Borden called the TRAPP line for Ms. Williams, which forwarded that call from Mr. Borden to Ms. Williams’s Wind Mobile cell phone. The call is recorded as having occurred on July 3, 2015, about a week before Mr. Ranglin’s preliminary inquiry.
[22] As a result of the police investigation, the police were able to obtain records from calls made from one of the three Maplehurst Correctional Facility pay phones (905 878-1026) on July 3, 2015 (Maplehurst Call). To be clear, these phone records do NOT show Mr. Ranglin making any specific call from the Maplehurst pay phone. The Maplehurst phone records show that a call was made from that pay phone to another number at a specific time. At best, the Crown would be able to show Mr. Ranglin had access to the pay phone to make the call – along with many other inmates at the time.
[23] The police investigation showed that, using the TRAPP line, the Maplehurst Call was forwarded to a “Kim Ramsey” at 416 775-7848. The police were unable to identify a “Kim Ramsey”. No one of that name lived at the address shown for “Kim Ramsey”.
[24] The police investigation showed that the Maplehurst Call to “Kim Ramsey” was forwarded to “Angela Thompson” at 647 825-9951 – a prepaid cell phone. Again the police were unable to identify an “Angela Thompson” and the address for that prepaid cell phone did not exist.
[25] The Maplehurst Call to “Angela Thompson” was forwarded to Ms. Williams’s cell phone.
[26] The timing of Mr. Borden’s call from Hamilton-Wentworth to Ms. Williams and the Maplehurst Call through the Ramsey phone, through the Thompson phone, and through to Ms. Williams’s cell phone overlapped on July 3, 2015.
The Defence Proposed Application
[27] The Defence raises three issues:
a) The Defence seeks to challenge the validity of the Production Order of April 19, 2016 for the telephone call records made from the Maplehurst Correctional Facility;
b) The Defence opposes the introduction of the July 3, 2015 phone records because the Crown failed to produce records for July 7, 2015, the day before the preliminary – a time period when Mr. Borden, at one point stated, that the “phone call” occurred a day or two before the preliminary; and
c) The Defence seeks an adjournment of his cross-examination of Mr. Borden because the results of the “Thompson” Production Order have not yet been disclosed by the cell phone provider.
The Analysis
The Maplehurst Records
[28] The insurmountable hurdles which the Defence faces with its proposed application are that:
a) The Maplehurst pay phone records only show a list of phone calls made (the time and telephone numbers called) from the three Maplehurst pay phones. The pay phones belong to Maplehurst. These phone records belong to Maplehurst Correctional Facility and could be introduced by a representative of Maplehurst as their records at trial;
b) The Maplehurst pay phone records do not show who made any particular call;
c) Even if it can be established that Mr. Ranglin made a call on a Maplehurst pay phone, Mr. Ranglin has no expectation of privacy in these phone records. He is in custody. He is using a pay phone. He is aware that calls from the pay phones can be monitored or recorded.
[29] The onus rests on the accused to establish, on the totality of the circumstances, that the state conduct impacted his “objectively reasonable privacy interests”. See R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456; R. v. Pugliese (1992), 71 C.C.C. (3d) 295 (Ont. C.A.); R. v. Nolet, 2010 SCC 24, [2010] 1 S.C.R. 851.
[30] There are two questions which need to be answered:
i. Whether the accused had a reasonable expectation of privacy;
ii. Whether the search was an unreasonable intrusion on that right to privacy.
See R. v. Edwards, [1996] 1 S.C.R. 128, at para. 33.
[31] These records do not show that Mr. Ranglin in fact used the Maplehurst pay phones. In these circumstances, the claim to a privacy interest must necessarily fail.
[32] In my view, Mr. Ranglin has no standing to challenge the admission of the Maplehurst pay phone records.
[33] Even, if Mr. Ranglin had standing to bring the proposed application, there is no merit to this argument as a basis for excluding the Maplehurst phone records.
[34] I add one last note. The Defence specifically enquired of the Crown whether it would seek phone records to confirm the three way cell phone call in April 2016. The Crown did so. The result of that search came back consistent with a three way call from Mr. Borden, Stacey Williams and someone at Maplehurst Detention Centre. Having asked for this investigation of phone records, the Defence now objects to the results of the investigation being admitted.
The July 7, 2015 Records
[35] If Mr. Borden has previously testified that the three way phone call occurred a day or two before the preliminary but the Crown has only produced phone records for July 3, 2015, this is a matter for cross-examination.
[36] The Crown submits that the commencement of the preliminary hearing was delayed. That may be so. But the Defence is free to cross-examine on this discrepancy or inconsistency between Mr. Borden’s prior statement(s) and the phone records.
[37] I also note that the Defence has not sought by way of application or even a demand from the Crown, to produce the July 7, 2015 phone records.
Lack of the Results of the “Thompson” Production Order
[38] As can be seen from the above description of the alleged “three way phone call”, Mr. Borden called the Trapp line which was forwarded to Ms. Williams’ cell phone.
[39] The “Thompson” part of the Maplehurst Call originated from Maplehurst, through “Ramsey”, through “Thompson” and eventually to Ms. Williams’ cell phone. There is no evidence or basis to suggest that Mr. Borden had or has any knowledge of the “other side of this three way phone call”. There is not a reasonable basis to delay the cross-examination of Mr. Borden.
[40] If the Crown intends to introduce the results of the “Thompson” Production Order, the Defence can bring an application for any relief the Defence considers appropriate.
Ricchetti, J.