Court File and Parties

COURT FILE NO.: 4403/16 DATE: 20170508 SUPERIOR COURT OF JUSTICE – ONTARIO

RE: R. v. Bradley MacGarvie, Thomas Nagy and Duran Wilson

BEFORE: The Honourable Mr. Justice Robert B. Reid

COUNSEL: G. Leach, Counsel, for the Crown R. Charlebois, and M. Peterson, Counsel, for Bradley MacGarvie G. Walker Q.C., and B. Walker, Counsel, for Thomas Nagy J. Razaqpur, Counsel, for Duran Wilson

HEARD: April 3 – 7, 2017

Ruling on Admissibility of Evidence of Cell Phone Use

Corrected Decision: Publication Ban added on May 11, 2017

THIS RULING IS SUBJECT TO A BAN ON PUBLICATION PURSUANT TO S. 648(1) OF THE CRIMINAL CODE OF CANADA AND SHALL NOT BE TRANSMITTED, REPRODUCED OR BROADCAST IN ANY MANNER UNTIL THE JURY IS SEQUESTERED OR A FURTHER ORDER OF THIS COURT ALLOWS.

[1] The Crown seeks a ruling on the admissibility of certain evidence at trial relating to the use of cell phones.

[2] There is agreement that the subscriber identification and call detail records (“CDRs”) from the four involved cell phone companies (“telcos”) are relevant business records. They will be entered into evidence at trial through the telco representatives.

[3] The first dispute is about whether the telco representatives, who are not expert witnesses, may give evidence about the “general rule” which is said to govern the location of a cell phone in relation to a cell site (a “tower”).

[4] The second dispute is about whether the Crown may use a PowerPoint presentation as demonstrative evidence, summarizing the telco representatives’ testimony.

Background Facts

[5] Messrs. MacGarvie, Nagy and Wilson have been indicted for the first-degree murder of Alexander Fraser. The murder is alleged to have taken place in the early morning hours of December 26, 2014. The theory of the prosecution is that all three accused persons were involved in the abduction of Mr. Fraser from a parking lot on the Niagara Parkway in the Town of Fort Erie following which he was put into a hydro channel in a remote location in the City of Niagara Falls. His body was recovered from the water of the hydro channel on March 17, 2015.

[6] Identity is a key issue. Therefore, the geographical location of various individuals including the deceased, the accused, and others is a live issue for trial. Location, as well as contact amongst the accused and others, is both relevant and material. By referring to cell phone records as well as other evidence, the Crown intends to locate the accused and others in proximity to the crime scene at the time that the offence is alleged to have occurred. The Crown alleges that cell phones were used by two of the accused and others during such relevant times.

[7] To provide proof of location, Crown seeks to adduce evidence through the telco representatives that, in general, a call to or from a cell phone will usually register at the tower closest to that cell phone. That proposition is based on the expectation that a cell phone will generally register at the tower with the strongest signal which is usually, though not always, the closest tower. The location of the towers used by the various cell phones in question are contained in the CDRs.

Factual Evidence of the “General Rule”

[8] There is no dispute that in proper circumstances, a non-expert witness can give factual evidence based on the person’s knowledge and experience. There is equally no dispute that the court has the discretion to exclude such evidence if prejudicial effect overbalances probative value. Prejudice can occur if the proposed evidence will consume excess time at trial, confuse the real issues, mislead the jury, or cause unfair surprise. Ultimately, my role in dealing with this issue is as “gatekeeper”, remembering that it is up to the jury to determine the weight to be attributed to any particular evidence.

[9] Factual evidence from telco witnesses has been allowed with regularity. It was approved by the Ontario Court of Appeal in both R. v. Hamilton [1] and R. v. Cyr [2]. In Hamilton, the appellant challenged the Crown’s failure to call expert evidence of the “general rule” at trial. At para. 277, the Court held that:

[W]e are satisfied that the evidence given by the three employees of the carrier companies was factual evidence, not opinion evidence. Each of them, by reason of their knowledge, observation and experience in dealing with cell phones for their respective companies could give the testimony they provided without being qualified as experts. They could testify about the times each appellant’s cell phone registered, the number calling and the number called, the duration of the call and the location of the towers at which the calls registered. These were factual details on which the carriers based their billing practices. Further, these employees had the knowledge and experience to testify about the general rule and its exceptions. They did not have to understand the scientific and technical underpinnings of the rule or have an engineering degree to give this evidence.

[10] The Court of Appeal in Hamilton added, at para. 279:

Even if evidence about the general rule and its exceptions could at one time have been considered opinion evidence, it is now simply factual evidence that witnesses with the knowledge and experience of Mr. Rickard, Mr. Iaccio and Ms. Hopper [the employees of the carrier companies] can testify about. They were not proffering a novel scientific or behavioral theory that was open to debate. They were testifying about uncontroversial facts related to the operation of cell phone networks.

[11] The telco witnesses who testified at this voir dire on behalf of their respective companies all had sufficient familiarity with the CDRs and the so-called “general rule” (which I will address below) and its exceptions to qualify themselves to provide the factual evidence offered.

[12] All four telco witnesses offered consistent evidence of the general rule, to the effect that (to quote Hamilton at para. 238) “a call to or from a cell phone will usually register at the tower closest to that cell phone. The basis of the general rule is that a cell phone will register at the tower with the strongest signal, which is usually, though not always, the closest tower.” They also recognized that there are exceptions to the general rule.

[13] In Hamilton, at paragraphs 239 and 240, the Court of Appeal acknowledged that the general rule is subject to certain exceptions:

The witnesses also testified that the general rule is subject to certain exceptions, including that a cell phone will not register at the closest tower if: (1) the closest tower is at capacity; (2) there is a body of water between the cell phone and the closest tower; and (3) there is a large obstruction (for example a multi-storey building) between the cell phone and the closest tower, and an unobstructed line of sight or flat area between the cell phone and a more distant tower. Hamilton maintains that this third exception is important to his appeal.

In brief then, it is possible that a cell phone will not register at the nearest tower if a more distant tower gives out a stronger signal or if any of the exceptions apply. Thus, though cell phone records assist in determining the approximate location of a particular cell phone at a particular time, these records reflect probabilities, not certainties.

[14] Defence counsel in this case elicited from the telco representatives a longer list of exceptions than was identified in Hamilton. The witnesses identified that cell phone handsets scan continuously for the most suitable tower and it is possible that two phones in the same location could “camp” on different towers. If the user of a cell phone was in motion during a call, the original tower could continue to be used despite the greater signal strength of a nearer tower for some time, to prevent ping-ponging of the signal. Entering, moving about in or leaving a building could result in changing of towers to one of more distant location during a call based on the obstruction created by the building.

[15] The presence of a general rule implies that it is applicable more often than not, but none of the witnesses could identify a specific percentage of non-exceptional cases. Based on the longer list of exceptions admitted by the witnesses, counsel submitted that there is no longer a general rule and that a limiting instruction to the jury would be insufficient. According to the submissions of defence counsel, the so-called general rule has now been reduced to the level of “junk science” and its prejudicial effect outweighs any minimal probative value.

[16] I agree that the court must be alert to technological or other changes that may call pre-existing assumptions into question. In this case, however, I note that all four of the telco witnesses confirmed the ongoing existence of the general rule. They represented four significant players in the Canadian telecommunications business: Bell Canada Enterprises, Telus Communications Company, Rogers Communications Canada, and Wind Mobile. None of them gave evidence that the exceptions to the general rule have resulted from recent technological changes. No expert or factual evidence was called by the defence to suggest that the general rule no longer applies. Finally, I note that in paragraph 239 of Hamilton, to which I have already referred, the Court of Appeal noted that “the general rule is subject to certain exceptions, including that a cell phone will not register …” [emphasis added]. The court did not purport to list all the possible exceptions.

[17] I am satisfied, based on the evidence, that the general rule does continue to exist and that it continues to be subject to exceptions. The general rule is not novel, it is broadly held in the industry and it has been judicially endorsed. The implied locations of cell phone users based on the cell towers used by particular phones at particular times reflects probabilities, not certainties. Clearly, counsel for the accused is entitled to cross-examine at trial as to the reliability of the evidence offered and it will be for the jury to determine whether to accept the location evidence tendered by the Crown after consideration of all the evidence. There is no suggestion, nor would it be proper, that a telco witness be asked to give an opinion about the precise location of a cell phone when a call was made.

[18] Balancing the potential probative value against the prejudicial effect, I conclude that the proposed testimony regarding the general rule has significant probative value. As noted, identity is a key issue for the trial. The location of the accused and other relevant individuals at particular times is very significant. The use of particular towers during the course of cell phone use is circumstantial evidence that may help the jury resolve the key issues in the case. As to prejudicial effect, I do not expect the issue of the general rule and its exceptions to require excess time at trial, nor do I consider that it will confuse the real issues, or be misleading to the jury. To the contrary, I expect it will be circumstantial evidence that is directly relevant to the issue of location which feeds the key issue of identity.

[19] Based on the foregoing, the Crown will be permitted to lead evidence of the general rule through telco representatives and, in due course, I will provide a limiting instruction as to the circumstantial nature of the evidence of location that flows from application of the general rule.

PowerPoint Presentation

[20] On behalf of the prosecution, a Niagara Regional Police officer has prepared a PowerPoint presentation consisting of 51 slides.

[21] The presentation purports to be a summary of the relevant subscriber information and CDRs for the cell phones registered in the names of the deceased Alexander Fraser, proposed witnesses Victoria Harvey and David Roth, the accused Bradley MacGarvie and one Don Nagy. It is alleged that the accused Thomas Nagy used the phone registered to Don Nagy. The CDRs upon which the summary is based consist of about 276 pages of data in total.

[22] In addition, the proposed presentation includes nine maps on which are identified various relevant locations that are expected to be highlighted in the trial, including the residences of Messrs. MacGarvie and Nagy, the location of the deceased’s burned vehicle, and various cell towers associated with particular cell phone calls.

[23] The Crown undertakes to lead the relevant evidence that is summarized in the PowerPoint presentation prior to entering the presentation as an exhibit. The police officer who created the presentation will testify and therefore will be available for cross-examination.

[24] The position of the Crown is that the PowerPoint presentation contains neither new evidence nor a complete statement of the Crown’s case. Rather, it is an accurate summary or synthesis of one specific area of evidence relating to cell phone use. It is offered in order to help the jury comprehend the facts by distilling and summarizing the extensive, and somewhat dense, material contained in the CDRs.

[25] The accused raise various objections including lack of necessity, lack of accuracy, embedded advocacy, and oversimplification.

[26] The information contained in the proposed PowerPoint presentation is clearly material and relevant to the outstanding issues. Identity will be a key issue in the trial. Chronology of contact and the location of the various players will be proper matters for the jury’s consideration.

[27] With the assistance of the cell phone evidence, the Crown hopes to confirm contact between the deceased and Victoria Harvey and between Ms. Harvey and Carol Acker as to arrangements to have the deceased attend at a site allegedly relevant to his abduction. During the same time period, the Crown intends to rely on cell phone communications between Messrs. MacGarvie and Nagy as well as between Mr. MacGarvie and Ms. Harvey. The admissibility of the CDR evidence of those contacts is not an issue. Moreover, the cell phone evidence is only one part of the Crown’s case which, as I understand it, will also rely on direct evidence of witnesses, video surveillance at various commercial locations and thermal-graphic images captured in United States border security records.

[28] I am satisfied that, as a general proposition, the Crown may lead what amounts to secondary evidence so as to assist the jury to comprehend, clarify and distill detailed information that is otherwise available but more difficult to access. This supports the goal of trial efficiency and reduces the potential for unnecessary confusion on the part of the jury. To the extent that the PowerPoint presentation will have what may be called “illustrative relevance”, it is desirable. I agree with the comment made by Fairburn J. of this court in R. v. Kanagasivam [3], at paragraph 48, that “[j]urors are selected to assess the facts of the case, not so 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.” I do not see the proposed PowerPoint presentation to be an oversimplification. To the extent that it is a simplification at all, it is a desirable consolidation of admissible evidence.

[29] I also agree with the defence that the PowerPoint presentation should not amount to what could be categorized as advocacy for the Crown’s position and therefore it should be neutral and fact-based. It must be scrupulously accurate. As well, I accept that there should be a mid-trial and final instruction to the jury as to the purpose and use to be made of the PowerPoint presentation evidence.

[30] Therefore, as a general conclusion, I accept that it is appropriate for the Crown to tender a PowerPoint presentation into evidence following the evidence of the telco representatives and that of the various witnesses whose evidence, as to cell phone use and otherwise, is referenced in the presentation. In arriving at this conclusion, I note that it is for the jury to determine the weight to be given to the evidence.

[31] In keeping with my comment about the need to avoid advocacy, I agree with the defence submissions that amendments need to be made to the PowerPoint presentation prior to its presentation to the jury.

[32] The format should be consistent as to fonts and color throughout the document, with the exception of maps. For example, it is appropriate to have one consistent font size for the title of the slide, another for its text, and another for its source.

[33] The information contained should be neutral and relate directly to the information shown in the CDRs. For example, references can be made to the date, time, sender and receiver of any particular message as well as its type and duration. The identification of gaps or of the absence of any further communication should not be shown. Counsel, in exercising their advocacy role, can suggest orally to the witness or jury any implications that may arise from the evidence or lack of evidence.

[34] Slides should indicate the sender and receiver impersonally, as for example: “MacGarvie’s cell calls …” rather than “MacGarvie calls …” This should be consistent throughout the presentation, regardless of whether the Crown expects there to be prior evidence of the actual caller or receiver. The jury can draw its own conclusion about the actual identity of the caller or receiver.

[35] The slide presentation should avoid providing any information other than the bare facts. For example, slide 35 indicates, in part, as follows:

At 1:09 AM, Fraser sends Randy Wilkes a text message that read “3089 Niagara Parkway.” Wilkes replied at 1:10 AM with, “for a call”, but Fraser did not respond.

As per my previous comment, the sentence should read: “At 1:09 AM Fraser’s cell sends …” In the second sentence, the word “but” should be removed so that the final sentences read: “Wilkes replied at 1:10 AM with, “for a call”. Fraser did not respond.”

[36] Similarly, the same slide reads:

At the time of this text, Fraser’s cell phone is utilizing the cell tower at 3599 Macklem St., in Chippawa (Niagara Falls). At 1:12 AM, two minutes later, Fraser’s cell phone is utilizing a cell tower located in Douglastown (Black Creek).

Although factual, there is no reason for the sentence to include the phrase “two minutes later”. The actual times are noted. If there is any significance to the gap between the calls, that is a matter of advocacy.

[37] I do not intend to wordsmith every slide and I leave it to counsel to review, discuss and revise the PowerPoint presentation as necessary.

[38] The maps were produced using different scales and there is no specific scale shown. As a result, the maps have the potential to be misleading. All maps should be to the same scale, with the scale identified. Ideally, all the maps should cover the same area even if different points on each map are highlighted. However, it may be that the distances involved do not permit all the maps to cover the same area while still showing sufficient detail to assist the jury. Again, I leave it to counsel to review, discuss and revise the maps as necessary.

[39] If any dispute as to the final detail of the PowerPoint presentation cannot be resolved consensually, counsel can address the issue during the trial and prior to the tendering of the presentation.

[40] Assuming that the PowerPoint presentation is used as part of the Crown’s evidence, there will be suitable mid-trial instruction. A more comprehensive final instruction to the jury will be provided in response to the evidence admitted at trial, which will include the following:

• That cell phone evidence should not be treated any differently than any of the other evidence in the case. It is simply circumstantial evidence from which inferences can be drawn;
• That while the PowerPoint presentation is part of the evidence for the jury to consider, it is for the jury to determine how much or little to rely on it;
• That in deciding whether to rely on the PowerPoint presentation, the jury should have regard to how it was prepared and the evidence upon which it was based. The presentation evidence would only be of assistance to the extent that facts underlying it are accepted;
• That the cell tower locations used by phones do not identify where a phone was at the time that the tower was used; and
• That the names on the PowerPoint slides reflect nothing more than the name of the person to whom the phone was registered at the time.

Conclusion

[41] For the reasons set out above, the Crown may call evidence through the telco representatives about the “general rule” which is said to relate the location of a cell phone to a tower.

[42] As well, the Crown may use a PowerPoint presentation as demonstrative evidence, summarizing the telco representatives’ testimony within the parameters I have noted, subsequent to the evidence being presented by those witnesses. Any unresolved dispute about the format or content of any particular slide may be addressed to me by counsel prior to the presentation being tendered as evidence at trial.

[43] Limiting instructions will be given to the jury as to the circumstantial evidence arising from cell tower use and as to the demonstrative evidence. Counsel may make submissions on the requested content of such instructions during the pre-charge conference.

Reid J. Date: May 8, 2017

Footnotes

[1] R. v. Hamilton, 2011 ONCA 399 [2] R. v. Cyr, 2012 ONCA 919 [3] R. v. Kanagasivam, 2016 ONSC 2250