R. v. Browne, 2017 ONSC 5060
CITATION: R. v. Browne, 2017 ONSC 5060
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 01 27
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 Jamie Kopman, Counsel for Mr. Williams
ENDORSEMENT
[1] Alyssa Azoulay a security analyst from Wind Mobile is currently testifying. She has been called by the Crown to introduce records for cell phone number 647-606-9424. The records have been introduced by way of a printout and an electronic Excel program.
[2] The Crown has examined the witness. Ms. Azoulay’s evidence is not complete.
[3] During cross-examination, Ms. Rozier directed Ms. Azoulay to calls 495, 496, 497, 501 and 502 as itemized in the records.
[4] Ms. Rozier pointed out that call 495 appeared to register at a cellphone tower located in Mississauga. However, 30 minutes later, call 496 appeared to register at a cell phone tower in Waterloo. Finally, counsel also pointed out that three minutes later, call 497 appeared to register at a cellphone tower in Mississauga.
[5] Ms. Azoulay acknowledged the discrepancy between the time and the geography but she maintained that the records were complete and accurate.
[6] She also agreed with Ms. Rozier that the geography did not fit the time frame disclosed by the records. For example, she agreed with the common sense proposition that a person could not travel from Waterloo to Mississauga in three minutes. Yet, there is a three minute gap between call 496 and 497 and the cell phone registers at two different towers in two different cities.
[7] Ms. Azoulay maintained that the records were complete and that there is an explanation for the discrepancy. She asserted that she could not provide the reason because she had not been asked to investigate this specific sequence of calls.
[8] Ms. Azoulay explained it was difficult to understand each transmission thoroughly because there were many records and it is all very technical.
[9] At the conclusion of Court yesterday, Mr. Hendry sought leave from the Court allowing him to speak to Ms. Azoulay even though her testimony is not complete. Mr. Hendry advised that he wants to direct Ms. Azoulay to conduct an investigation into the discrepancy.
[10] Generally speaking, lawyers are forbidden from communicating with their own witness while that person is giving testimony without first obtaining leave from the trial judge. These rules exist to prevent any improper discussion of the case with the witness and to allow that person to provide their testimony without assistance. (See Professor Peter Sankoff Portable Guide to Witnesses Section 4.5)
[11] In Ontario the rules relating to this issue are set out in the Rules of Professional Conduct. The relevant rule states that during cross-examination by an opposing lawyer, the witness's own lawyer ought not to have any conversation with the witness about the witness's evidence or any issue in the proceeding.
[12] Ms. Rozier and Ms. Addie take the position that before leave should be granted the court must make an inquiry as to: a) whether there is a reasonable likelihood the witness can in fact secure the information; and b) the anticipated length of time it would take the witness to collect this information, if it is available.
[13] Defence counsel argue that only if Ms. Azoulay can obtain the information quickly will the defence consent to any contact between the Crown or any person arising from her investigation and such contact must be in writing and disclosed to the defence.
[14] Counsel for Mr. Browne do not take a position on this matter.
Analysis
[15] I am of the view that leave should be granted. I decline to hold an inquiry prior to deciding whether to grant leave. It is important that no further delay be occasioned by this matter. Practically speaking, the sooner Ms. Azoulay can address the issue of whether there is a reason for the discrepancy, the better. The witness testified yesterday that there was an answer for the discrepancy but she did not have the answer and would need to investigate the matter. Arguably, this is evidence that could be elicited in re-examination or by reply evidence (See R. v. R.D., 2014 ONCA 302).
[16] The witness is not qualified to testify or provide an opinion as to the precise location of a cell phone. To the extent that Ms. Rozier has asked this witness to testify as to where a caller was at any given time, the witness is not here to provide an opinion as to where a cell phone was located when a call was made.
[17] As I see it, the ruling of the Court of Appeal in R. v. Hamilton 2011 ONCA 399 permits this witness to give factual evidence relating to the operation of the Wind Mobile network and the interpretation of the cell phone records used for billing purposes before the Court. Therefore, she can testify about the number of times a 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. She can also testify as to the interpretation of various entries in the billing records. Finally, she is permitted to testify about the general rule, the exceptions to the rule and the setup of the cellular tower network.
[19] All of this testimony is about uncontroversial facts and is permitted by the judgment of the Court of Appeal.
[20] Therefore, I am of the view, the investigation into the matter is not improper. It relates to her interpretation of the cellphone records. To avoid any more delay, the Crown is permitted to direct the witness to investigate the discrepancy in calls 495, 496, 497, 501 and 502. However, any material compiled by this witness should be disclosed to the defence. In the absence of the jury on Monday, I will bring the witness back in Court to determine if she was successful in investigating the discrepancy. The witness is directed to come to Court at 9:30 a.m., and the Crown is permitted to advise the witness that her start time for Court has changed.
[21] I see no need for the Crown to copy their direction or correspondence with Ms. Azoulay to the Court or defence counsel. The Rules of Professional Conduct are clear and the presumption is that the Crown is well aware of their obligations under the Rules.
Conclusion
[22] Leave is granted to the Crown to communicate with Ms. Azoulay and advise her to conduct an investigation into calls 495, 496, 497, 501 and 502. Any material compiled by the witness should be disclosed in advance to defence counsel.
Coroza J.
DATE: January 27, 2017
CITATION: R. v. Browne, 2017 ONSC 5060
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 01 27
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 Jamie Kopman, Counsel for Mr. Williams
ENDORSEMENT
COROZA J.
DATE: January 27, 2017