CITATION: R. v. Browne, 2017 ONSC 5067
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 01 30
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] This is my ruling on the admissibility of cell-phone records from Telus as a numbered exhibit in these proceedings.
[2] Alyssa Azoulay is in the witness stand. Ms. Azoulay is an employee of Wind Mobile. The witness has been testifying about cell phone records for Wind phone number (647-606-9424).
[3] During cross-examination Ms. Morphew showed the witness Telus cell phone records for a Telus phone number (647-458-0056). Ms. Azoulay acknowledged that she recognized the Wind mobile number in these records. However, Ms. Azoulay explained that she could not comment on the accuracy, completeness or reliability of this record because they are not Wind records.
[4] There appears to be no dispute that counsel for Mr. Browne served s. 30 Canada Evidence Act (CEA) notice on the Crown in relation to the Telus record.
[5] Ms. Morphew on behalf of Mr. Browne requests that the Telus record be made a numbered exhibit. The Crown objects.
[6] First, the Crown submits that in the normal course, a party relying on s. 30 of the CEA to admit business records into evidence would wait for when the party is called upon to give evidence and then ask that the records be made an exhibit. Essentially the Crown argues that the witness must act as a conduit to the evidence. The effect of Ms. Morphew’s proposal is to make any witness the conduit of business records, regardless of that witness’ lack of knowledge of the records. This is an incorrect application of s. 30 CEA argues the Crown.
[7] Second, the Crown submits that the section restricts the admissibility of records to otherwise admissible oral evidence. The Crown argues that Ms. Azoulay cannot provide admissible oral evidence regarding the records and the affidavit.
[8] Ms. Morphew responds by asking me to look at the context. Counsel argues that the Crown case against the accused relies heavily upon cell phone evidence. The Crown has entered cell phone records from Rogers and Wind Mobile without objection.
[9] Mr. Browne seeks to admit into evidence these additional cell phone records from Telus. As I understand her argument, since the Telus records contain information about the Wind mobile number communicating with the 0056 phone, there is a very compelling inference that Mr. Browne was in possession of the 0056 at the relevant time. In this case, Ms. Morphew submits that the Telus records line up with the Wind records but provide more information as to the content of the text messages and the general location of the 0056 phone. Counsel argues that it was a logical time to introduce the records through a witness who is testifying about the corresponding Wind phone number. Ms. Morphew argues that since s. 30 CEA has been complied with the records are admissible through the witness.
[10] Second, Ms. Morphew argues that s. 30 of the CEA begins with the condition of “where oral evidence in respect of a matter would be admissible in a legal proceeding”. It does not go on to state “from the witness currently testifying”. Such a requirement would undermine the purpose of the section, to do away with the need for a witness to give evidence about the making of the document. Counsel argues that the question that needs to be asked is whether the information contained in the 0056 records would be admissible, not whether Ms. Azoulay could give the oral evidence as suggested by the Crown.
Analysis
[11] I believe that there are two components to this issue: (i) are the records admissible as a numbered exhibit at this point? and (ii) can Ms. Azoulay testify to the contents of the records? Conflating the two questions risks causing confusion because different admissibility considerations may apply in each case.
(i) Are the records admissible as a numbered exhibit at this point?
[12] Distilled to the essentials, the Crown’s argument is that the records are not admissible at this point and the Court should wait for the defence to call a proper witness to act as a conduit for the reception of these records. I am not persuaded by Mr. Hendry’s argument.
[13] The Court of Appeal has noted that the act of accepting any document as a numbered exhibit, or of converting a lettered exhibit into a numbered exhibit, has only a limited effect. The Telus record has already been made a lettered exhibit because it was referred to during cross-examination. By later converting a lettered exhibit into a numbered exhibit, the Court would be doing no more than asserting that it is satisfied that the document is relevant to a fact in issue in the proceeding and has a sufficient measure of authenticity, usually provided by a witness, to warrant its inclusion in the trial record as an exhibit for later consideration by the jury. (See:1162740 Ontario Limited v. Pingue, 2017 ONCA 52)
[14] Since there is no dispute that s. 30 of the CEA has been complied with, it is my view that the Telus records are sufficiently authentic to warrant being made a numbered exhibit. I am also satisfied that the Telus records are relevant. The record contains the Wind mobile number referred to by Ms. Azoulay. However, as I will explain below this does not mean that the witness can comment on the ultimate reliability of this evidence. Finally, by admitting these records, this does not mean that the jury has accepted the reliability of this record. Any dispute about the reliability of the record must be resolved on independent evidence and decided by the jury. However, I see no unfairness to the Crown in admitting these records as a numbered exhibit at this point.
[15] In the event that I am in error, I agree with Ms. Morphew that a mechanical application of s. 30 of the CEA would work an unfairness to the defence. In this regard, there is some support in the jurisprudence – that grants the accused wider latitude in introducing evidence than is the Crown (See: R. v Finta 1994 129 (SCC), [1994] SCJ No. 26 and R. v. Grant, 2015 SCC 9, at paras. 18-46.)
[16] In R. v. Williams (1985), 1985 113 (ON CA), 50 O.R. (2d) 321 (C.A.) Martin J.A. commented:
It seems to me that a court has a residual discretion to relax in favour of the accused a strict rule of evidence where it is necessary to prevent a miscarriage of justice and where the danger against which an exclusionary rule aims to safeguard does not exist.
[17] I am persuaded by Ms. Morphew’s arguments that I should relax a mechanical application of the rules and permit this exhibit to be marked as a numbered exhibit at this stage of the proceedings. I conclude that the record is relevant.
(ii) Can Ms. Azoulay testify to the contents of the records?
[18] However, I am not persuaded that Ms. Azoulay can testify as to the contents of the Telus records. Indeed, the witness has made it very clear that she does not recognize these records. Ms. Azoulay has confirmed that there is a Wind number found in the records. However, any other questions that are asked of this witness must be logically relevant. In light of Ms. Azoulay’s assertion that she cannot speak to these records, it is my view that any other questions soliciting her opinions or observations of these records will not be permitted.
[19] I am not persuaded by Ms. Morphew’s argument that Ms. Azoulay has no more personal knowledge about the Wind records, than the Telus records. It is true that the Wind records have been admitted as a business record. However, Ms. Azoulay is acting more than just a conduit for these records. The witness has been called to explain the structure of the records, and the interpretation of the various entries of the records as part of the Wind network and their billing practices. As I have explained in my previous ruling dated January 27, 2017, pursuant to the Court of Appeal’s jurisprudence on the issue of cell phone evidence, this witness is providing evidence of fact about the Wind network. Ms. Azoulay cannot do the same for Telus records.
Conclusion
[20] The Telus records will be marked as a numbered exhibit in these proceedings.
Coroza J.
DATE: January 30, 2017
CITATION: R. v. Browne, 2017 ONSC 5067
COURT FILE NO.: CRIM J (P) 469/14
DATE: 2017 01 30
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 30, 2017