CITATION: R. v. Merritt, 2017 ONSC 5739
COURT FILE NO.: CRIMJ(P) 1459/16
DATE: 20170927
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Brian McGuire and Eric Taylor, for the Crown
Respondent
- and -
MELISSA MERRITT and CHRISTOPHER FATTORE
David Berg and Joel Hechter, for Melissa Merritt
Jennifer Myers and Daisy McCabe-Lokos, for Christopher Fattore
Applicants
HEARD: July 28, August 10, 2017 at Brampton
RULING No. 14: Application to Excise Passages from Transcripts of Intercepted Communications
RESTRICTION ON PUBLICATION
Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
F. DAWSON J.
[1] The applicants request that I make an order that certain parts of transcripts of intercepted private communications the Crown intends to introduce at trial be edited. More specifically, the applicants want me to direct that the word “inaudible” be inserted in place of some of the words that currently appear in portions of the transcripts. The applicants do not suggest that the jury should not hear the recordings. However, they do not want the jury to have the transcripts in their current form when they do so. They submit that providing the jury with the transcripts in their current form will “prime” the jurors to hear what the prosecution says can be heard on the recordings.
[2] The recordings in question were made from room probes that were placed in the applicants’ residence pursuant to authorizations to intercept private communications issued under Part VI of the Criminal Code. Many of the recordings are of poor quality.
[3] As this application was finally argued, the applicants seek very specific editing of 10 “sessions” recorded in various rooms of the applicants’ residence. When originally filed the application was broader. It was narrowed after I listened to the recordings and provided a brief oral summary about what I was able to hear and not hear listening to the recordings using headphones with the transcript before me. I was able to hear much of what counsel initially claimed was inaudible.
[4] I listened to the recordings on my own due to the unusual way in which this application came before the court.
[5] I had no idea that this application would be brought until I received a Notice of Application filed 83 days after the filing deadline agreed to by all counsel had expired. By then we were 52 days into the hearing of the other pre-trial applications. I advised counsel that due to late filing this matter might not be heard. It was deferred while other pre-trial applications proceeded. By the time this matter was reached the trial before the jury was fast approaching. Crown counsel submitted that I should dismiss the application pursuant to Rule 34.03 for non-compliance with the rules or pursuant to Rule 34.02 on the basis that there was no reasonable prospect of success.
[6] I advised counsel orally that I had decided not to dismiss the application for non-compliance with the rules. I indicated that I would review the written material and make a determination about whether I would dismiss the application on the basis of a lack of prospect of success. At that point the court was presented with a significant case management problem. The duration of the other pre-trial applications had taken far longer than counsel’s estimates and the trial was imminent.
[7] As part of this application the applicants filed a report from an expert witness and proposed to call her on the application. The respondent had not yet retained an expert. All counsel had been fully occupied with the other pre-trial applications.
[8] After reviewing the material I advised counsel, in brief oral reasons, that I did not see the need to call the expert. I advised that having read the report I was generally aware of the common sense proposition that in some circumstances someone may be more inclined to hear on the recordings what was typed in the transcript. I ruled that I did not need the assistance of an expert to understand that or to make what is essentially a legal decision in the exercise of my discretion as the trial judge about how transcripts may be used during the trial. I relied on R. v. Parrott, 2001 SCC 3, [2001] 1 S.C.R. 178, at paras. 53-61.
[9] In Parrott one of the issues was whether an adult complainant with a mental disability was competent to testify. The complainant was available and there was no suggestion that she would be harmed if called to the witness box. However, the complainant was not called. Instead the Crown called a medical expert. Based on that expert’s testimony the trial judge found that the complainant was incompetent, thus giving rise to the necessity to admit reliable hearsay of her allegations in place of her testimony.
[10] The majority of the Supreme Court of Canada concluded that there was no need for the expert testimony because trial judges are assigned the task of determining competence and the trial judge could have done so by hearing from the complainant. The question the trial judge was required to answer was essentially a legal one.
[11] I found the reasoning in Parrott directly applicable because, as I will explain below, there is a well-developed body of law that applies to the question I am asked to decide. Having reviewed the expert’s report I was of the view that her evidence was simply not necessary and would not be helpful to me in making the legal decision I am called upon to make.
[12] The expert had also conducted an experiment which is described in her report. She had a number of individuals with characteristics described in her report listen to excerpts of the impugned recordings in this case in order to test their accuracy in interpreting the recordings. They did not have the assistance of the transcripts.
[13] In view of what I have already said it may not be necessary for me to deal with this aspect of the expert’s report. However, it is readily apparent that the experiment undertaken bears no resemblance to what jurors in this case will be asked to do. The subjects in the expert’s experiment had little context to assist them in interpreting what they were hearing. However, the material filed from the expert makes the point that understanding is affected by knowledge of context. The jury will have a great deal of contextual knowledge to assist them in understanding the recordings. They will know about the facts and issues in the case, the names of various individuals and the general background to the recordings they are listening to. They will also have evidence before them of a number of emails sent to the applicants by the police for the purpose of stimulating conversations between the accused on the subjects referred to in the stimulating emails. The recordings reflect that the applicants were intercepted discussing the content of the stimulating emails. The subjects of the experiment conducted by the expert had none of this.
[14] I concluded that there was no value to me hearing evidence about an experiment that bears no resemblance to the task the jury in this case will be required to perform with the benefit of proper legal instructions.
[15] I turn now to the established law in this area. As held in many cases, including in R. v. Rowbotham (1988), 1988 CanLII 147 (ON CA), 41 C.C.C. (3d) 1 (Ont. C.A.), at p. 47, it is the recordings themselves that constitute the evidence. See also R. v. Shayesteh 1996 CanLII 882 (ON CA), [1996] O.J. No. 3934 (C.A.), at para. 87; R. v. Oliynyk [2005] B.C.J. No. 2513 (C.A.), at paras. 19-20; R. v. Martin 2010 BCCA 526, [2010] B.C.J. No. 2296 (C.A.), at paras. 52-58. The jury will be instructed accordingly. As also held in Rowbotham, at p. 48, and in the other cases as well, it is in many cases appropriate that the jury have the assistance of a transcript while recordings are played in court and during deliberations. Whether jurors are permitted to use the transcripts in this way is within the discretion of the trial judge.
[16] In the present case, as in Rowbotham, the applicants dispute the accuracy of the transcripts. It is their complaint about transcript accuracy that leads to their request that I alter the transcripts prepared initially by monitors and finalized by Cst. Lowe, who will testify about the process.
[17] In Rowbotham, at pp. 48-49, the court set out how disputes about the accuracy of transcripts should be resolved:
There was considerable dispute as to the accuracy of the transcripts. We think problems of that nature can generally be readily resolved. When the tape is played the wording of the transcript, usually presented by a police officer, can be challenged by way of cross-examination. If cross-examination does not satisfactorily settle the issue, the defence can always tender a witness who has listened to the tapes and prepared a transcript setting out an alternative interpretation of the words spoken on the tape. The two transcripts could then go to the jury. This would bring home the nature of the dispute and lead the jurors to a careful review of the tape itself. In many instances, counsel's reference to the alleged inaccuracies both in cross-examination and in jury addresses may answer the problem.
In any event, a transcript prepared by one who has carefully listened to the tape, stopped it and replayed it on frequent occasions should not be lightly discarded. Members of the community are now thoroughly familiar with tape recordings. It is a common event to listen to tapes, to play and replay songs and dialogue and even to transcribe those songs and dialogue. From that general experience, it is now common knowledge that someone who has listened to a tape, stopped it and replayed it on many occasions is better able to prepare a transcript than one who is hearing a tape for the first time. Repeated playing of a tape will familiarize a listener with the speech patterns, rhythms and intonations of the speaker. The result is that the patient, repetitive listener has so trained and equipped himself that he is in a better position accurately to transcribe the conversation recorded on the tape. To deprive the jury in all situations of the transcript and to require them to listen repeatedly themselves to all the tapes at the conclusion of a lengthy trial would be to adopt an unrealistic approach and to impose unnecessary burdens on the jury.
[18] It seems to me that this is the procedure that should generally be followed where the accuracy of a transcript is dispute. While as the trial judge I have a residual discretion to exclude aids to understanding the evidence, it is for the jury to determine what is said on the recordings. Having listened to the recordings myself I am of the view that jurors will be assisted in that task by having the unedited transcripts before them. They will be in a good position to determine whether the transcripts as finalized by Cst. Lowe are accurate.
[19] I am advised that Cst. Lowe has indeed listened to the recordings related to the disputed transcripts many times. He has listened to some of them with the benefit of specialized equipment from a commercial sound recording studio. I am advised by Crown counsel that the same equipment will be used to play the recordings in the courtroom and it will be available for use by the jury should they wish to replay the recordings. The applicants can cross-examine Cst. Lowe about transcript preparation and can call any relevant evidence about what they claim is actually heard on the recordings. This is in accordance with the guidance provided in Rowbotham.
[20] While I must proceed in accordance with the procedure set down in Rowbotham I recognized that the applicants should have an opportunity to convince me that the prejudicial effect of permitting the jury to have the prosecution’s version of the transcript exceeds the probative value or assistance that will be provided to the jury by having that transcript. Accordingly, while I did not hear viva voce evidence from the proposed expert, I did hear the submissions the applicants wished to make on this limited issue.
[21] The applicants do not submit that the version in the transcript could not reasonably be what was said by the applicants as evidenced by the recordings. The arguments advanced at the hearing essentially boiled down to the repeated submission that one cannot hear on the recordings a few words that appear in the transcripts or that there could be competing interpretations of a few of the words. For example, a transcript of session 1417 attributes to Mr. Fattore the words, “I killed him fuckin’ perfect”. The applicants dispute the accuracy of this statement in the transcript.
[22] The applicants initially submitted that this statement was inaudible. However, when I listened to the recording with headphones I thought I could hear this fairly clearly. Counsel then submitted that at the preliminary inquiry Cst. Lowe testified that he thought at one point that the recorded words were, “I killed him fuckin’ prove it.” I must say that it is possible the triers of fact might hear it either way. However, it seems to me that, provided with a proper instruction, there is little prejudice in permitting the jury to sort this and similar issues involving other parts of the recordings out with the assistance of cross-examination and any competing interpretations of what was said being brought to their attention. That is primarily their function.
[23] I have listened on more than one occasion to each of the recordings in relation to which the accuracy of portions of the transcripts is in dispute. I have not had as much difficulty in determining the accuracy of most parts of the transcript as counsel have suggested. I have also found that listening to the recording repeatedly often leads to hearing things not initially heard. I have also had the experience of being able to hear and understand something on one day that I could not hear or understand on another day. These experiences suggest to me that these factual determinations should be left to the jurors to resolve on the basis of a proper instruction. I do not see the degree of prejudice the applicants submit exists. I certainly do not see any potential prejudice as outweighing the benefit jurors will derive from having the transcripts before them while listening to the recordings. The jury will be told that if they do not hear on the recording what is in the transcript they are to disregard the transcript and determine the case on the basis of what they hear on the recording.
[24] There is one other matter I wish to refer to. In the applicants’ written material they referred to Cst. Lowe relying on “enhanced recordings” to make the transcripts and stated that the respondent had indicated that it would not rely on the enhanced recordings at trial. I was very concerned about this and raised it with Crown counsel. It seemed to me to be highly problematic to permit Cst. Lowe to testify to the accuracy of a transcript based on his use of enhanced recordings that the jury would not have.
[25] This concern was thoroughly canvassed on the record with Crown counsel on two occasions. I have been assured that there is no enhanced recording. Rather, I am told that Cst. Lowe attended at a commercial recording studio and listened to a limited number of difficult to hear recordings using specialized equipment. Crown counsel advises me that the same equipment will be brought to the courtroom and used to play the recordings to the jury. Obviously, Cst. Lowe can be cross-examined about all of this and both sides are free to call relevant evidence about the specialized equipment, how it works and how it was used.
[26] Based on what I have been told I am, at the moment at least, satisfied that my initial concerns will be adequately addressed by the evidence that will be presented to the jury. As I understand it, this will not be a situation where the jury will be left with the impression that Cst. Lowe had some advantage which they do not, which might lead them to rely on Cst. Lowe’s evidence about what is on the recordings when they are unable to hear it for themselves.
[27] The application is dismissed.
F. Dawson J.
Released: September 27, 2017
CITATION: R. v. Merritt, 2017 ONSC 5739
COURT FILE NO.: CRIMJ(P) 1459/16
DATE: 20170927
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
MELISSA MERRITT and CHRISTOPHER FATTORE
Applicants
RULING No. 14: Application to Excise Passages from Transcripts of Intercepted Communications
F. Dawson J.
Released: September 27, 2017