CITATION: R. v. Durigon, 2017 ONSC 7075
COURT FILE NO.: 2017-14
DATE: 2017 11 27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
J. Tatum, Counsel for the Crown
Respondent
- and -
SEAN LOUIS DURIGON
A. Marchetti, Counsel for the Accused
Applicant
HEARD: November 20, 2017
RULING NUMBER 3:
MISTRIAL APPLICATION
WEIN, J.
[1] Mr. Durigon is charged with possession, making available, and accessing child pornography. His counsel has brought a mistrial application during the course of the Crown’s case, on the basis that the right to make full answer and defence and the integrity of the trial has been breached by the Crown Attorney’s examination of a police technical analyst. It is argued that the witness gave an unqualified expert opinion which contradicted the qualified expert opinion of the Crown’s own expert witness, and that the demonstration supporting the evidence was improper as it was done without notice.
[2] The defence argued that it was only once the Crown Attorney had heard the cross-examination of the Crown’s expert that they understood the defence strategy, and then sought to ‘ambush’ the defence with additional contradictory evidence.
Underlying Facts
[3] The defence concerns relate to the evidence in the trial regarding the meaning of different dates recorded on a hard drive in relation to the computer files that are acknowledged to be child pornography. It is not disputed that a computer operating system may record such artifacts as the creation date, last modified date, and/or last access date. The issue concerns whether such dates are accurate, which may depend on factors such as the type of operating system of the computer and/or the formatting or file system of the hard drive where they are stored. This evidence will be potentially significant circumstantial evidence bearing on the issue of identification of the accused as the person who possessed, accessed or made available the child pornography on particular dates.
[4] There are references to the time records in the reports of the qualified expert, Detective Constable Pinkerton. In his written reports, there is no specific expert opinion given with respect to the manner in which these dates are created or the accuracy of the dates. In particular, no opinion is given with respect to updating the last access date on the files in different versions of computer operating systems or on different file systems.
[5] While no child pornography was found on the laptop known to have been used by the accused – the Acer laptop found in his bedroom – Detective Constable Pinkerton testified that the Bipra hard drive on which the child pornography was found had at one time been connected to that laptop. The disk signature was the unique identifier providing the link between the two.
[6] The issue of access dates and their updating in relation to the type of operating system was not referred to by the Crown in-chief examination of Detective Constable Pinkerton at the trial. It was however raised in cross-examination by the defence.
[7] In cross-examination, reference was made to file systems found on the hard drive: NFTS (New Technology File System) and FAT32 (an older file system). Detective Constable Pinkerton first indicated that he was not aware of features of the NTFS system that were different from FAT32 insofar as creation dates were concerned.
[8] Detective Constable Pinkerton’s attention was drawn to the last access dates on the child pornography video files listed in the expert witness report. The access dates on many of the files are later than the creation date. Detective Constable Pinkerton was asked to give his opinion about how the child pornography files could have had their access dates updated in view of the fact that newer versions of the Windows operating systems do not update the access dates.
[9] Detective Constable Pinkerton was asked about specific access dates that were later than the creation dates. When questioned about the logic of his answer, after pausing he said: “I see your point there….” He then revised his answer that it could be an operating system that does update the access time and was used with that external hard drive. He said pre-Vista systems do update the access date. He could not speak to whether other systems such as MacIntosh or Linux update the access dates.
[10] The officer hesitated in giving a response to whether that was the only way: he said he was “going to take a second to run the dates through and I want to make sure I can confirm accurately for you.” When asked again if whether using a system that updates the access time was the only way it could happen, the officer also suggested that it could have been user-modified, although that was a less likely explanation.
[11] In summary, after taking time to consider the question and in going through the relative file dates, Detective Constable Pinkerton eventually agreed with the defence that the most likely scenario for this was that the Bipra external hard drive had been attached to a computer running an earlier, that is pre-Vista, version of Windows or another operating system that updates the access time, and the files had been opened on that computer, manually editing the information on the file, was less likely.
[12] The Crown later called Special Constable Bingham, a digital forensic analyst with the Technology Crimes Unit of the O.P.P. He was called to give evidence concerning the preview of the Bipra hard drive found during the search of the Applicant’s bedroom, and his evidence on that aspect of the case had been disclosed to the defence.
[13] He testified that in a search for child pornography, the Technology Crimes Unit brings to the scene a van specially equipped with devices that allow the analysts to test computers and other devices for child pornography referred to in the warrant. In this case, SC Bingham testified concerning what he saw when he ‘previewed’ the Bipra hard drive in the Tech van. He saw titles suggestive of child pornography stored in one partition on the hard drive. He described this partition as Partition 5, and testified that it had an older type of ‘FAT32’ file system, as opposed to other partitions on the hard drive which used the NTFS System. He indicated that the Bipra hard drive would also store the path, date created, and modified date. These were in a route path that was not in a folder and was not deleted, that is, it was active. The defence at one point raised an objection with respect to the officer giving opinion evidence. It was ruled that he could not be asked for his opinion, but could give evidence from his own direct experience and knowledge.
[14] Additional questioning by the Crown then occurred. SC Bingham:
testified concerning the particular operation of the NTFS file storage system and the FAT32 file system, as well as the interaction of Windows operating systems with them, and
with the Crown using his computer, gave a demonstration as to how this would occur in a NTFS system compared to a FAT32 file system.
[15] SC Bingham’s evidence was that date created would be when the file was created or copied to that location and the date modified would be when any change was made to the file. In particular, SC Bingham stated that newer versions of the Windows operating system do update the last access date on files within a FAT32 file system, such that access dates of files on Partition 5 of the Bipra hard drive where the child pornography files were stored would update.
[16] The defence did not object to these questions at the time, or to the demonstration as it unfolded.
[17] It is uncontroverted that SC Bingham was never proffered as, nor qualified as an expert witness, although he did advise the defence in cross-examination that he had been qualified as an expert on other occasions when he had testified.
[18] Following the mid-day recess the defence indicated that it was considering whether to bring a mistrial application, but declined to indicate the basis for the possible application. The case was adjourned early, at the request of the defence. The trial resumed the following Monday.
Summary of Argument
[19] The defence argues that SC Bingham in effect gave expert opinion evidence. He was never qualified, gave no report, and the evidence was not disclosed in advance to the defence.
[20] Further, the defence strenuously objects to the fact that they had no warning with respect to SC Bingham’s capability for answering questions he was asked, and in particular no warning about what was termed a ‘theatrical display’ by the Crown Attorney. The defence also noted that they had no opportunity in advance to examine the thumb drive used in the demonstration or an opportunity to examine the Crown Attorney’s computer to verify claims about the operating system.
[21] The defence argues that in effect the Crown has endeavoured to contradict its own expert witness, on a point first made in cross-examination, and has in doing so undertaken a shift in trial strategy, because the Crown came to understand the significance of the expert opinion given in cross-examination. It is noted that the Crown Attorney is also aware that delay has been an issue in this case from the defence perspective: there has already been an earlier application under Section 11(b) of the Charter, which has been dismissed, with written reasons still pending.
[22] The defence does not, at least in oral argument, suggest deliberate bad faith on the part of the Crown, but argues that the Crown developed a new approach to the evidence following the cross-examination of Detective Constable Pinkerton. The defence argues that a mistrial is the only effective remedy.
[23] The Crown argues that the evidence elicited from SC Bingham was not expert evidence, but was simply an effort to explain the information he obtained in previewing the computer, based on his own knowledge of operating systems in response to the earlier cross-examination of the expert on the point.
[24] The Crown indicated that just before SC Bingham testified, he did give notice to the defence that he would be asking about the access dates on the files. This is contrary to what the defence recalled, but was not seriously disputed. What is agreed is that there was no disclosure to either the defence or to the Court of the planned demonstration. With respect to the demonstration, the Crown points out that the computer and thumb drive used in the simple demonstration of how a FAT32 file system records dates is readily available to the defence for authentication if required.
[25] The Crown argues that since the issue was one that was raised by the defence, it cannot be said to be improper for the Crown to explore the issue in later evidence. It cannot properly be called a change in tactics, since the Crown was simply endeavouring to draw out other available information concerning the issue on which the defence had first cross-examined.
[26] The Crown suggests that this cannot be called ‘trial by ambush’, but is simply a case where the evidence has evolved and that at most, a remedy such as providing time to the defence to call the defence expert who is available and who was in court to observe the expert evidence given by the Crown, and/or the recalling of Crown witnesses, will suffice to remedy any prejudice said to have been occasioned by the defence.
Issues
[27] Several distinct issues are raised in the argument;
Should the demonstration be admitted, given the lack of disclosure;
Was the evidence expert evidence;
What are the appropriate remedies?
Demonstration
[28] Without providing notice to either the defence or to the Court, the Crown commenced what can best be described as a demonstration during the evidence given by SC Bingham. The purpose was to illustrate the evidence of SC Bingham concerning the updating function when a file is accessed through a computer using a Windows 7 operating system onto a thumb drive formatted with FAT32. The demonstration consisted of using the two .pdf files, the two expert reports of Detective Constable Pinkerton already in evidence. These had been preloaded onto a USB thumb drive formatted with a FAT32 file system.
[29] SC Bingham was asked to do a step-by-step demonstration of how one of those files, being accessed from the thumb drive through the computer using Windows 7, would have the access date updated. The demonstration showed that the actual date did update. This was consistent with SC Bingham’s earlier testimony that access dates update when the file is on a device formatted with a FAT32 file system even where a newer Windows operating system was used on the computer.
[30] Demonstrations are evidence. They are sometimes done ad hoc, for example where a witness is indicating the size of an object, or spontaneously showing the way a blow was struck. Sometimes demonstrations are planned, to show for example how an assault occurred or the manner in which a sexual touching occurred, or how a shoe impression was made or, famously, whether a glove fits. Simple demonstrations are usually permitted without objection. However, where a demonstration is more elaborate, the Court must be mindful of the potential for prejudice. Before being admitted, a demonstration must be shown to be relevant, material and of probative value which exceeds possible prejudice.
See: Hill, Tanovich and Strezos, McWilliams Canadian Criminal Evidence, 5th Ed. “Chapter 23: Real and Demonstrative Evidence” (2017) Thomson Reuters Canada Toronto at 23:10, 23:12:30, 23:20:30:30:20, 23:30:10, 23:30:30.
[31] Here, the potential for prejudice arose not in the vividness of the demonstration, which is of concern in many demonstration cases, but in the fact that defence counsel had not been given notice. Accordingly, defence counsel had not had an opportunity to verify the operating system on the computer, or the formatting of the thumb drive as FAT32, and could not effectively cross-examine after the demonstration was done.
[32] At the time of the demonstration, I was unaware that the defence had not had prior notice. I incorrectly assumed that they had, because there was no objection taken. Counsel subsequently indicated that that was because they were simply shocked at what was occurring, since they had not been given notice. The defence took objection, at the next available time, when they asked to adjourn early to consider over the weekend what remedy to seek. Accordingly, the objection should be considered to have been timely. The defence now seeks a mistrial.
[33] While it is not seriously contended that the Crown’s description of the operating system or the formatting of the thumb drive was inaccurate, such a precise and planned demonstration simply should not have been given without notice. While it was effective in explaining the testimony concerning the updating of the access time, it was not necessary.
Disclosure
[34] As observed most recently in in R. v. Bennett, 2017 ONCA 780, at para. 30:
The principles governing disclosure are well established and there is no need to review them here: see R. v. Stinchcombe, 1991 45 (SCC), [1991] 3 S.C.R. 326, at pp. 332-336, 338-346, R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at paras. 17-25.
[35] An accused’s right to disclosure, including the case to meet, has a constitutional dimension:
An accused's right to disclosure of material that meets the Stinchcombe standard is a component of an accused's right to make full answer and defence. In turn, an accused's right to make full answer and defence is a principle of fundamental justice in s. 7 of the Charter. Therefore, a breach of the Crown's duty of disclosure is a breach of an accused's constitutional rights under s. 7.
R. v. G.S., 2010 ONCA 296, at para. 31
[36] As not infrequently occurs, the disclosure issue in this case arose in the course of the trial. Such a situation was addressed by the court in R. v Horan, 2008 ONCA 589, at paras. 24-26:
- In Stinchcombe, Sopinka J. identified two fundamental purposes of disclosure. First, he noted at p. 6 that the experience from the civil discovery regime demonstrated that "justice was better served when the element of surprise was eliminated from the trial and the parties were prepared to address issues on the basis of complete information of the case to be met". He then went on to explain why, because of different interests engaged in a criminal case, there was a principled basis for only requiring disclosure from the Crown.
25 Second, at p. 9, Sopinka J. identified the "overriding concern that failure to disclose impedes the ability of the accused to make full answer and defence". He then pointed out that this common law right had acquired a constitutional dimension as a result of the inclusion of the fundamental justice guarantee in s. 7 of the Canadian Charter of Rights and Freedoms. Further, the then recent findings of the Royal Commission on the Donald Marshall, Jr., prosecution had shown that lack of disclosure was an important factor in the conviction of an innocent man: see Nova Scotia, Royal Commission on the Donald Marshall, Jr., Prosecution, Vol. 1: Findings and Recommendations (Nova Scotia: Queen's Printer, 1989).
26 Since Stinchcombe, there have been many decisions from courts of all levels respecting the Crown's disclosure obligations. This process has not been without its problems and controversies. This case is not the opportunity to attempt to rationalize all those decisions. But, it seems to me that when a court is faced with an allegation of non-disclosure especially where the allegation comes up in the middle of the trial and threatens to derail the proceedings, it would be helpful to bear in mind the purposes identified by Sopinka J. in Stinchcombe. Put simply, disclosure is a means to an end. Full prosecution disclosure is to ensure that the accused receives a fair trial, that the accused has an adequate opportunity to respond to the prosecution case and that in the result the verdict is a reliable one. However, Stinchcombe has not completely overhauled the paradigm of the adversary process in which trials are dynamic and as events unfold, prosecution and defence may find that they have to respond quickly to
changes in strategy and changes from the expected testimony of witnesses.
[emphasis added]
[37] In this case, while the issue was perhaps tangentially or indirectly raised in one or two questions during the defence’s cross-examination of Detective Constable Pinkerton at the preliminary inquiry, the issue was not definitively raised until the cross-examination of Detective Constable Pinkerton at trial.
[38] In that evidence, Detective Constable Pinkerton stated in summary that access dates for any operating system later than Windows Vista (such as the Windows 8.1 on the Acer laptop) are not relied on because they are not updated by the system: the date just follows from where the file existed previously. No questions were asked about date updating on NTFS compared to FAT32 file systems.
[39] There is no suggestion that the Crown deliberately refrained from investigating the issue further. It was not raised by the expert reports and not known by the Crown. After the detailed cross-examination at trial, the Crown quite properly addressed the issue in re-examination of Detective Constable Pinkerton, and properly sought to see if other witnesses in the case who had computer or technical expertise could give evidence bearing on the issue. This is part of the dynamic process of trial.
[40] I accept the Crown’s submission that he advised the defence before SC Bingham testified that he would ask him questions about the access date, on the Bipra hard drive which he had examined. As noted elsewhere, the Crown did not advise either the defence or the Court of the proposed demonstration, and ought to have done so. But exploring the issue with another witness, to the extent possible, was an appropriate approach for counsel to take in the evolving circumstances of the trial.
[41] Accordingly, the argument concerning the lack of notice does not apply to that direct evidence, although the timing of the notice may be relevant to the remedy.
Expert Evidence
[42] The next question to be determined is whether or not this evidence from SC Bingham amounted to expert opinion evidence.
[43] The line between fact and opinion is not always a bright line. A witness with special knowledge may be able to testify as to facts directly within the witness’s knowledge, based on their observation and experience, without giving an opinion. So, where a witness with expertise or experience in a particular field is called to provide evidence as to facts he or she observed or perceived without offering any opinion based on those observed facts, the testimony is not subject to the opinion evidence rule: R. v. Marquard (1993), 1993 37 (SCC), 85 C.C.C. 3d 193 (S.C.C) at Page 225. It is clear that the opinion rule does not bar evidence, short of opinion, based on a witness’ particular knowledge or background.
[44] Although the line between factual evidence given by persons who have knowledge and experience in a particular technical area and opinion evidence based on that knowledge may not always be easy to draw, it is now accepted that where persons have knowledge and experience about a particular computer-based technology issue, such as for example cell phone evidence, persons may testify without being qualified as experts. In particular, where the evidence is not a novel social science or behavioural theory open to debate, but concerns facts related to the operation of technology, the evidence is properly regarded as simply factual technical information, ultimately incontrovertible, and not open to debate.
[45] In R. v Hamilton, 2011 ONCA 399, it was held that employees of cell phone companies could give evidence based on their knowledge, observation and experience in dealing with cell phones concerning the times a particular cell phone registered the number calling and the number dialed, the duration of the call, and the location of the towers. The Court of Appeal held that this was factual evidence, not opinion evidence, and these were factual details on which the carriers based their billing practices, and about which the employees had the knowledge and experience to testify concerning the general rule and its exceptions. They did not have to understand the scientific and technical underpinnings of the evidence or have an engineering degree to give the evidence. (at para. 277-280)
[46] Similarly, in R. v. Mugabo 2017 ONCA 323, the Court held that a nurse who was called by the Crown to give factual observations about injuries in question in a sexual assault case could give opinion evidence about the source of that evidence when asked by defence counsel. The Crown had not sought to have the nurse qualified as an expert. The Court of Appeal held that the absence of formal qualifications does not necessarily make admission of a person’s opinion an error of law. One of the factors considered by the Court was whether the witness’s experience would have allowed for formal qualification to give the opinion that was ultimately received. While the case is not directly on point, since it was defence counsel who elicited the opinion, the case does illustrate that where, as here, formal qualification could have been done, the evidence may still be admitted. In any event, SC Bingham did not give an opinion.
[47] In R. v. Singh 2015 ONSC 6823, it was held that evidence from cell phone carriers’ representatives was admissible as factual evidence where the proposed evidence concerned the rules governing the location of a cell phone in relation to a cell phone tower, the times and towers at which the cell phones in question registered, and the synchronization between the times used by the cell phone carriers and the 9-1-1 system. The court relied on Hamilton and R. v. Cyr, 2012 ONCA 919, where cell phone propagation maps were relied on.
[48] While the line may be difficult to draw in cases relating to human behaviour or novel science, and while there is an area of discretion in the court to determine whether the proposed evidence should only be admitted through an expert qualified to give an opinion, in cases such as this, involving knowledge of computers, the factual evidence should be admitted without requiring that the witness be qualified as an expert.
[49] In the result, the additional evidence introduced by the Crown was factual evidence within the witness’s expertise and knowledge, and it was properly given without further qualification.
Remedy
[50] As noted in R. v. John, 2017 ONCA 622, at para. 47, “[t]rial judges have a firmly rooted authority to control proceedings over which they preside” in order to ensure a process which is “effective, efficient and fair to all parties”. In most instances of disclosure disputes, compelled disclosure on the new point, adjournment, recall of a witness or witnesses will be equal to the task of moving the case forward. In the Horan case, at paras. 30 and 31, the court stated:
30 Where a breach of the Crown's disclosure obligation is made out to the extent that the accused's s. 7 Charter right to make full answer and defence has been infringed, trial judges have at their disposal an arsenal of remedies ranging from a stay of proceedings in the most egregious cases, to ordering disclosure and subsidiary remedies such as ordering costs against the prosecution or adjourning the proceedings. Further, in an appropriate case, the trial judge has the power to give the remedy adopted in this case of excluding the undisclosed evidence: see R. v. O'Connor (1995), 1995 51 (SCC), 103 C.C.C. (3d) 1 (SCC) at para. 66, approving the use of innovative remedies as appropriate, including exclusion of evidence, as was done in R. v. Xenos (1991), 1991 3455 (QC CA), 70 C.C.C. (3d) 362 (Que. C.A.).
31 Any remedy for breach of the disclosure obligation must be responsive to the breach; the remedy must, in the words of s. 24(1), be "appropriate and just in the circumstances". In most cases, the appropriate remedy is to order disclosure and, if necessary, adjourn the case to allow the defence to conduct whatever further preparation or investigation may be necessitated by the disclosure. In some cases, an adjournment may not be an appropriate or just remedy if the result would be to unreasonably delay the trial of an in-custody accused. In such a case, an appropriate remedy could be exclusion of the undisclosed evidence. However, the burden is on the accused to demonstrate that exclusion of the evidence was appropriate.
[51] The defence has asked the court to consider the full contextual background in assessing what an appropriate remedy might be. The defence argues that the fact that the Crown Attorney was aware of the suggested delay issues, that they did not seek to have SC Bingham qualified as an expert, that in order to bring expert evidence they would be required to seek an adjournment, that there was no attempt to notify the defence in advance, and that the Crown Attorney “engaged in trial by ambush” are all factors that in the submission of the defence should lead to a mistrial. I note that the defence has not specifically asked for a stay of proceedings, but I have considered that to be the corollary to the request for a mistrial.
[52] Section 657.3 of the Criminal Code governs the pretrial disclosure of expert reports and provides a helpful list of suggested remedies. Pursuant to Section 657.3(4), where the notice requirements have not been met, the Court may grant an adjournment to allow for preparation of cross-examination, order the disclosure of any report or summary of the opinion, or order the calling or recalling of any witness for the purpose of giving testimony on matters related to those raised in the expert witness’s testimony.
[53] In this case, the defence has already indicated that it took the opportunity of the weekend recess to consult with two other persons with expertise on the topic. The defence advised that they had received differing opinions. As well, the defence has had a defence expert present in court during the testimony of Detective Pinkerton: it has been suggested that that expert will not testify but the defence has not made a final decision with respect to whether or not to call evidence.
[54] This is not a case such as R. v. Jama 2013 ONSC 307, where an order requiring disclosure and an adjournment was found to be an inadequate remedy. In Jama, additional prejudice was suffered by the accused because of the late disclosure, because he had testified at a preliminary inquiry as to an asserted alibi and the Crown had later disclosed his cell phone records which tended to undermine the alibi. In that case, because the accused could be prejudiced by the potential cross-examination of him on his preliminary inquiry testimony, that evidence was excluded. The Court declined to stay proceedings, finding that it was not one of the exceptional and extreme situations justifying the imposition of the stay because the accused’s right to make full answer and defence was otherwise adequately protected.
Result
[55] In the particular circumstances, given the absence of notice to the defence it is appropriate that the evidence of the demonstration be ruled inadmissible. For clarity, a transcript of a portion of SC Bingham’s evidence showing the inadmissible portions has been provided to both Counsel.
Ruling
[56] This ruling does not prevent either the Crown or the defence from using a demonstration in further examination or cross-examination of any witness, or, with proper notice, of conducting a demonstration of another witness. If the expert who has already testified is re-called by either party, evidence of any further examinations he has made to clarify his earlier testimony may also be given.
[57] With respect to the other evidence of SC Bingham, it is admitted at trial. The Crown or defence may recall any witness who has already testified, to give further evidence on this issue of updating the access and other dates. The defence may of course call its own expert witness if it decides to do so. To accommodate counsel, the matter will be adjourned to a convenient date towards the end of the current Sittings.
[58] The Mistrial application is otherwise dismissed.
Wein, J.
Released: November 27, 2017
CITATION: R. v. Durigon, 2017 ONSC 7075
COURT FILE NO.: 2017-14
DATE: 2017 11 27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
SEAN LOUIS DURIGON
Applicant
RULING NUMBER 3:
MISTRIAL APPLICATION
Wein, J.
Released: November 27, 2017