CITATION: R. v. Browne, 2017 ONSC 5061
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 02 15
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
Crown Application Re: Removing References to CJ
Overview
[1] The Crown seeks an order excluding from evidence any reference to the name "CJ" with a phone number of 647-204-8942 from the phone records of the deceased.
[2] The Crown alleges that the deceased, Dwayne Thompson, had two phones. The police seized these phones from Mr. Thompson when he was found at the scene of 7230 Darcel Avenue.
[3] Counsel for Mr. Browne tendered the cellular phones belonging to the deceased as exhibits on October 5, 2016. The phones are Exhibits 7 and 8. At the time the phones were tendered there was no objection. There are also reports containing the data found in these phones that have been disclosed.
[4] One of the phones found in the possession of the deceased (416-312-3225) contains a contact list. The list contains the names CJ (associated to the 8942 number).
[5] The phone records for 3225 were tendered by the Crown on November 23, 2016. Again, there was no objection to the admission of these phone records.
[6] The records disclose that the 8942 number was activated on September 7, 2012 and there appears to be contact between 8942 and the 3225 phone number on October 18, 20, 29, 31 and November 1, 2012.
[7] There has been evidence led in this trial that Mr. Browne has a nickname CJ. It is also not disputed that from 2010 to October 20, 2012, Mr. Browne was in jail. The jury has not been told that Mr. Browne was in jail during this time period. Counsel have agreed that they will tell the jury (through a proposed agreed statement of fact) that Mr. Browne lived away from Toronto for some time and returned on October 20, 2012. The jury will also be told that during this time period Mr. Browne did not have access to any cell phone.
Positions of the Parties
Position of Crown
[8] The Crown argues that I should exclude the phone contact of CJ from the 3225 records because to leave the reference in would mislead the jury. Mr. Cornelius submits that this evidence is not relevant and it is inadmissible hearsay. Counsel argues that there is evidence that Mr. Browne was in custody and that the CJ making contact during the relevant time period is a different CJ.
[9] The Crown submission is that I should perform a gatekeeping function and since there is no evidence that the person associated with the contact name on the deceased's phone is Mr. Browne, it would be confusing and prejudicial for counsel to suggest otherwise.
[10] Distilled to the essentials, the Crown's position comes down to this: counsel for Mr. Browne should not be permitted to suggest to the jury that CJ on the phone contacts is, in fact, Mr. Browne.
Position of Mr. Browne
[11] On behalf of Mr. Browne, Ms. Morphew argues that the Crown position is unfair. Counsel submits that the Crown position amounts to "cherry picking". If the Crown position is that the contact list on 3225 is hearsay then it is improper for the Crown to lead the contact list and text messages from any of the phones that were seized. For example, counsel argues that there is contact information on the 3225 phone that reveals the name Scarface with a phone number of 647-606-9424. Counsel points out that the Crown will no doubt make the submission to the jury that Scarface is indeed Mr. Greensword.
[12] Ms. Morphew submits that the contact lists and the text messages are not hearsay because the statements are not being adduced to provide the truth of its content. Counsel submits that if the text message would have no probative value if its content were false, then it is hearsay. However, if the statement is relevant for some other purpose it is admissible.
[13] Counsel acknowledges that it is an admitted fact that Mr. Browne would not have had access to a cell phone up to October 20, 2012. However, Ms. Morphew argues that there is probative value from the fact that there is contact between the 3225 phone and the 8942 phone after October 20 and significantly on October 31. This is important, counsel asserts, because the Crown theory is premised on the fact that Mr. Browne and the deceased were not known to each other.
Position of Mr. Greensword
[14] Ms. Rozier for Mr. Greensword supports the Crown's position that the contact list and text messages are inadmissible hearsay and she argues that the name assigned to any contact on the phones as well as the content of any text messages are hearsay and presumptively inadmissible. Counsel argues that any references to a contact list or the contents of any text message should be redacted from the phone records. This of course would include removing the name Scarface from the lists. The Crown alleges that Scarface is Mr. Greensword.
Position of Mr. Williams
[15] Ms. Addie did not participate in this application and takes no position.
Analysis
(i) Relevance
[16] As a preliminary matter, Mr. Cornelius submits that the contact list reference to CJ is not relevant. I disagree. For evidence to be admissible it must be relevant, material and admissible.
[17] In short, provided the evidence offered for reception has some or any tendency, as a matter of logic and human experience, to prove a fact, the evidence is relevant. (See: R. v. Watson (1986), 1996 4008 (ON CA), 108 C.C.C. (3d) 310 (C.A.) at pp.323-324).
[18] I agree with Ms. Morphew that the fact that a phone number associated to CJ making contact with the deceased's phone number after October 20, 2012 is relevant. Identification of the men who accosted the deceased and shot him is a live issue at this trial. The Crown has led evidence that suggests that Mr. Browne cannot be excluded as a source of a minor contributor to a mixed DNA profile found on the deceased's fingernails. It appears that the Crown theory is that Mr. Browne was the shooter and there was a transfer of the DNA through contact.
[19] There is evidence that Mr. Browne does go by the name CJ and that he had no access to a cell phone up to October 20, 2012. However, this admission does not address the issue of contact after October 20, 2012. Was Mr. Browne making contact with the deceased's cell phone after October 20? Did Mr. Browne have contact with the deceased prior to the date of the shooting? In my view, it may be open for the defence to argue this point subject to an evidentiary foundation being present in the evidence. Therefore, the reference to CJ in the deceased's phone and contact between that number and the deceased prior to his death may be relevant.
[20] The threshold for admitting evidence because it is relevant is not onerous. In my view, the evidence is relevant. Of course any submission by counsel must be based on a proper evidentiary foundation established by properly admissible evidence. The Crown argues that this is all hearsay. Hearsay is presumptively inadmissible. I now turn to the hearsay arguments advanced by the parties.
(ii) Hearsay
[21] The controlling principles related to the admissibility of hearsay have been helpfully set out in Ms. Rozier's materials. They are not in dispute.
[22] Hearsay statements are out of court statements that engage two essential conditions. First, the fact that the statement is adduced to prove the truth of its contents. Second, the absence of contemporaneous opportunity to cross-examine the declarant.
[23] As one of the parties to any conversations or texting that occurred on his phone, the deceased cannot be cross-examined.
[24] The Supreme Court of Canada recently decided the case of R v. Seruhungo, 2016 SCC 2. A majority of the Supreme Court of Canada allowed an appeal brought by the accused substantially for the reasons of the dissenting judge in the Court below (Justice O'Ferrall in the Alberta Court of Appeal). In my view, Seruhungo, is of considerable assistance in determining this application.
[25] In that case, a young person, L, shot and killed the deceased and was convicted of murder. The Crown alleged that Seruhungo had either provided the gun to L or formed a common intention to commit an unlawful act which foreseeably resulted in the death of the deceased. Mohammad, an unsavoury Crown witness, testified that Seruhungo had told L to shoot the deceased in the leg. The Crown submitted a number of items of independent evidence in support of Mohammad's evidence.
[26] One of the items of independent evidence was a text message sent between L and the deceased on the night of the shooting. The Crown argued the text was not hearsay and could confirm Mohammad's evidence.
[27] The trial judge rejected Mohammad's evidence in its entirety. The trial judge also declined to review the text message and ruled it was hearsay and that the principled exception to the hearsay rule did not support the admission of the text message. As a result, Serhungo was acquitted of manslaughter.
[28] The Crown appealed and the majority of the Court of Appeal allowed the Crown's appeal. However, Justice O'Ferrall dissented and would have dismissed the appeal. Justice O'Ferrall agreed that the trial judge erred in his characterization of the text message as hearsay but that the error would not have mattered.
[29] Justice O'Ferrall held that even if a statement is introduced not for its truth but for the assertion that it was made, it remains hearsay in the event that the witness introducing it cannot be cross-examined on her "veracity, perception and memory" of the statement and there is no other circumstantial evidence to authenticate who made the statement.
[30] In this case, Justice O'Ferrall held that the issue of whether the text messages were actually sent by L or the deceased was one of authentication, not hearsay.
[31] I note that the majority of the Court of Appeal also agreed with this view. The majority held if the chief concern about these text messages is that there was no evidence that the messages were actually sent by L or the deceased that was a question of authentication of the text messages as opposed to hearsay.
[32] I turn now to the various arguments advanced by the parties about the text messages and the contact list on the 3225 phone.
(iii) The Records for 3225
[33] Ms. Morphew argues that the contact list and the text messages found on this phone are not hearsay. I agree. The purpose that this evidence is being offered is whether the phone calls or the text messages were actually made by the sender. The content of any text message is irrelevant. Whether the content of the statement is true or false does not matter. It is being tendered to show that a number associated in the 3225 contact list (as CJ) was contacting the 3225 phone on specific dates. The issue here is not the truth of the text messages or the contact, but who made the statement. Was it Mr. Browne? In that circumstance, the issue is one of authentication. (See also R. v. Evans, 1993 86 (SCC), [1993] 3 S.C.R. 653 at 663-664).
[34] I respectfully conclude that the purpose for introducing this evidence is one that is properly the subject matter of evidence in the proceedings. In other words, the purpose is relevant to a material issue in the proceeding. The admission that Mr. Browne was out of the Toronto area and did not have access to a cellphone up to October 20, 2012 is a red herring. Indeed, this admission does not address contact after that date. In my view, contact just before the shooting, is a live issue with respect to the DNA evidence. If the jury were to accept that Mr. Browne did have contact with the deceased prior to the shooting, this may call into question the Crown theory that the DNA transfer occurred on the date of the shooting. I note that this evidence cannot come directly from the expert Dr. Popovic. It must be proven through circumstantial means.
[35] Whether the defence want to call evidence that the person who sent these texts or made these calls is Mr. Browne is entirely up to the defence. Again, this is an issue of authentication. The defence has no burden here. I suspect that if the defence had tried to cross-examine any Crown witness on this issue, they may have drawn an objection. Indeed, the Crown has repeatedly objected to the elicitation of admissions by an accused through cross-examination.
[36] In summary, the crucial issue here is whether the text messages or phone calls were actually made by Mr. Browne. This is an issue of authentication and does not engage hearsay concerns. There appears to be no dispute that the records are accurate representations of the messages that passed between phones. If any of the parties want to point to circumstantial evidence of authentication they are certainly entitled to. However, any submission made to the jury must be anchored in the evidence. The jury will be told that they cannot speculate or guess and they will be instructed on the proper way to draw inferences.
[37] The application to remove the references to CJ in the contact list for 3225 is dismissed. The application to remove the text message content from the 3225 phone is also dismissed.
(iv) Evidence of Sgt. Rice.
[38] Ms. Rozier submits that the evidence of Det. Rice (i.e. Exhibit 46) is littered with hearsay. Counsel argues that the exchange of text messages between Scarface and the 3225 are all inadmissible. I disagree.
[39] Putting aside whether objection should have been made when this evidence was first tendered (See: R. v. Gundy, 2008 ONCA 284), it seems to me that the proper way to look at this issue is whether these messages were actually made by Mr. Greensword and the deceased. Again this is an issue of authentication and not hearsay. There is no dispute that the records are accurate representations of the messages and Det. Rice was called to address what he found on the phones. He was cross-examined on the issues.
[40] The Crown, who has the burden of proof, must show that these messages did pass between Mr. Greensword and the deceased and they can do that without turning the messages into hearsay. For example, the Crown can call evidence that a phone number in the 3225 contact list is actually a phone number associated to Mr. Greensword. I am told that there will be an agreed statement of fact relaying this information to the jury. This evidence is admissible as an admission to the probation officer. The Crown can also call point to circumstantial evidence that Mr. Greensword is known as Scarface. Finally, the Crown can also point to the evidence of Margaret Warner as to her observations and her evidence as to the deceased's use of the phone before his death and his references to the name Scarface just before he died.
[41] Ms. Rozier's application to redact the records is dismissed.
(v) The Admissibility of Data found in Exhibits 7 and 8
[42] Although the Crown specifically submitted that it was not going to resile from the fact that the records of the phones belonging to the deceased were going to be tendered for the jury, I do want to address Ms. Morphew's submission that because the two phones (Exhibits 7 and 8) were tendered into evidence on October 5, the jury is entitled to examine the data in these phones by powering up the phones.
[43] It seems to me that the phones were tendered on the basis that they were real evidence. As real evidence it can go to the jury room because it "conveys a relevant first-hand sense impression to the trier of fact" (See R. v. Taylor, 2015 ONCA 448). In this case, the jury may want to examine the phones to compare what they see on the video of the lobby at 7230 Darcel Avenue.
[44] Generally speaking witnesses give evidence about the exhibit. Their evidence is subject to cross-examination, which may qualify or diminish the weight to be assigned to the exhibit, the real evidence. (See Taylor, supra at para 109).
[45] In this case, I do not recall the witness being asked questions about the data found in these phones. In the absence of any cross-examination on this point, in my view, data found inside the phone was not tendered on October 5, 2016.
[46] Ms. Morphew makes the submission that it was obvious to everyone in the courtroom that when the phones were being tendered into evidence this included the data found in the phones, I respectfully disagree. Given the absence of cross-examination on this point, it was not at all obvious to at least one observer in the courtroom.
Conclusion
[47] The Crown application is dismissed.
[48] Ms. Rozier's application is dismissed.
Coroza J.
DATE: February 15, 2017
CITATION: R. v. Browne, 2017 ONSC 5061
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 02 15
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: February 15, 2017