COURT FILE NO.: 4685/19
DATE: 20210112
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. J.P.B., C.G.B., S.J.A., C.L., and W.J.V.
BEFORE: The Honourable Justice Robert B. Reid
COUNSEL: P. Vadacchino and C. Lapointe, Counsel, for the Crown, Applicant
S. Buchanan, Counsel, for J.P.B., Respondent
M. Peterson, Counsel, for C.G.B., Respondent
B. Simpson, Counsel, for S.J.A., Respondent
E. Gok, Counsel, for C.L., Respondent
D. Protomanni, Counsel, for W.J.V., Respondent
HEARD: January 6, 2021 by Zoom
decision on USE OF demonstrative AIDS
CORRECTED DECISION: October 13, 2022 Names of parties have been anonymized. No changes to content made.
[1] The Crown seeks a ruling on the admissibility of proposed demonstrative aids.
Background:
[2] The co-accused in this case are alleged to have committed a variety of offences, mainly of a sexual nature, involving a total of 10 victims. Amongst them, they face about five dozen individual counts.
[3] The dates of the alleged offences vary as amongst the accused but range between 1996 and 2017.
[4] The offences are alleged to have taken place at the several residences of J.P.B. and at other locations, all within the city of Port Colborne.
[5] The trial before judge and jury is expected to include the testimony of many witnesses, most of whom will be civilians and the duration of the trial is estimated to be 26 weeks.
The proposed demonstrative aids:
[6] The Crown proposes to present aerial maps of the city of Port Colborne to witnesses at the trial. These maps were produced for the Regional Municipality of Niagara and dated Spring 2018. They are overlaid with "parcel information" from the Municipal Property Assessment Corporation showing the boundaries of individual properties.
[7] There are six maps in total, labeled on Exhibit 1 as follows:
Appendix A Barrick Rd., Port Colborne and surrounding area;
Appendix B East Village and surrounding area, Port Colborne;
Appendix B1 East Village, Port Colborne;
Appendix B2 Apprehension address (781 Steele St., Port Colborne);
Appendix C Port Cares, Port Colborne; and
Appendix D Main Street West, Port Colborne
[8] Street names have been superimposed onto the maps, and specific properties have been highlighted with a red border. In addition, photographs of the exterior of most of the highlighted properties have been embedded.
[9] Some of the photographs were created by members of the Niagara Regional Police Service and the dates of those photographs are identified in each case. Other photographs were located through Google Street View and the purported photography dates are shown. In some cases, multiple photographs are included for an address showing the exterior of the property on different dates or giving different exterior views.
[10] Some of the maps provide close-up detail of the areas in question, duplicating portions of those maps which show a bigger picture.
Position of the Crown:
[11] The Crown proposes to use the maps to assist the jury in understanding the evidence and eliminating possible confusion when witnesses refer to events at various locations. For example, the B. family occupied many different residences during the relevant time span.
[12] The submission of the Crown is that the maps are accurate and that the embedded images present a fair depiction of the exterior of the premises pictured as of the date on which the photos were taken. The photograph dates are with few exceptions close in time to the events that witnesses are expected to describe. Although it is not anticipated that any evidence will be provided about how Google produces or records the Street View photos, the Crown submits that the court should take judicial notice of their accuracy and reliability based on the ubiquitous nature of the Google Maps platform.
Positions of the Accused:
[13] The five accused do not speak with a common voice on their objections to the use of the proposed demonstrative aids.
[14] According to some counsel, the Crown has not satisfied its burden to show relevance or necessity for the demonstrative aids.
[15] Counsel question whether the maps are needed in that there is no issue about travel from or the relative location of one place to another.
[16] The photos are challenged on the basis that they are unnecessary and the authenticity of Google Street View has not been not established.
[17] The separate identification of the Port Cares building is unnecessary. Likewise, it is not appropriate to highlight one location and building as "apprehension address". There is no need to identify one municipal address as "grandparents".
[18] Captioning of two maps as "East Village" is prejudicial to the accused because there is a pejorative connotation to that neighborhood.
[19] The identification of particular addresses does not apply to all the accused. As a result, identifying particular locations on the maps is prejudicial to the accused who are not connected with those locations.
Analysis and Conclusions:
[20] In general, accurate maps can be used to assist the trier of fact understand oral testimony. In that sense, the maps are not independent evidence. Similarly, maps may assist witnesses to provide their testimony in an organized and understandable way.
[21] In this case, the maps come from a single reliable source. The accuracy of the maps was acknowledged. There was no challenge to the street names or to the property parcels superimposed onto the maps.
[22] During the trial, there will be many witnesses testifying to events occurring at a variety of different locations within the city of Port Colborne. The trial will be lengthy. Any assistance that can be given to the jury to make the evidence more comprehensible should be given. To the extent that the maps streamline the testimony of witnesses, that is to be encouraged. Despite the fact that the case does not turn on travel to or distances between various locations, I conclude that the use of the aerial maps is acceptable.
[23] It is common to have portions of maps shown in a larger scale in order to highlight particular areas, such as downtown urban locations. If the Crown wishes to use close-up views taken from the same original aerial photographs, it is free to do so. However, care should be taken to choose close-up portions carefully. For example, the map Appendix B includes 778 Steele Street and the map Appendix B2 includes 781 Steele Street. The closeness of those two locations suggests that they should be shown on the same map. Similarly, the two Main Street West locations shown in Appendix D are geographically quite close to the Steele Street addresses on Appendix B. The map Appendix C shows a small portion of Port Colborne which does not visually connect with any of the other maps or locations. In that respect, it may be more confusing than clarifying and therefore any map reference to 82 Charlotte Street and Port Cares should be shown in relation to other relevant locations.
[24] As to property descriptors, they should be neutral and consistent. For example, it is not appropriate to have the map Appendix D identified as "Apprehension Address (781 Steele St., Port Colborne)". The fact of the apprehension of one of the complainants at that address is a matter for evidence. The same observation applies to the map Appendix A where five addresses on Barrick Road are identified. Two refer solely to the municipal address. The other three are subtitled "Fay Farms – Sheila Adair", "Grandparents" and "Anita Busch". The same issue occurs on Appendix B where 181 Welland Street is subtitled "Chris Brown and Nancy Franey's Residence" and 201 Welland Street is subtitled "The Ritz Hotel". All those descriptors should be removed before the maps are presented in court. The locations can be more specifically identified in the course of the evidence.
[25] On Appendix B, 19 Nickel Street is subtitled "The Queen's Hotel". In that case, since the actual building is clearly identified by name on its exterior, it is not inappropriate to identify it on the map as such.
[26] Appendix C is offered for the sole purpose of identifying the location of Port Cares. That agency will have some significance in the trial through the involvement of its employees with one of the complainants and their observations of some of the accused. As with the Queen's Hotel, and for the same reasons, there is no harm in identifying Port Cares by name on the map.
[27] "East Village" is a portion of the city of Port Colborne located on the east side of the Welland Canal. The Crown advised that there is signage identifying the neighborhood by name. Defence counsel are concerned that the area is known to be economically disadvantaged. In effect, referring to someone as a resident of "East Village" is akin to saying that the person lives "on the wrong side of the tracks".
[28] Since East Village is the name of a recognized area, it is not appropriate to exclude reference to it to avoid any possible prejudice to those of the accused who lived there or who had dealings at premises in that area. The jury may or may not have any familiarity with the city of Port Colborne or its neighborhoods. In any event, it is the evidence of the events rather than location that will be relevant to the jury's consideration. Therefore, there will be no order that the Crown be restricted from referring to East Village in its demonstrative aids.
[29] The fact that not all the accused are connected with each address shown on the maps is of no consequence. This is a joint trial. Not all the evidence will apply to all accused. The jury will be advised what evidence applies to which person. In any event, there is no prejudice to any accused in having maps available with locations shown to which reference may be made at trial.
[30] Finally, I turn to the question of whether it is proper to embed photos in the maps.
[31] As with the maps themselves, the key question is whether the photos of the exterior of premises are of assistance to the jury and the witnesses in relation to the expected evidence. The Crown submits that they give the evidence a visual connection to the municipal address which will assist witnesses in their testimony and that there is no prejudice to the accused. The photograph of the Port Cares premises could assist the jury in visualizing how certain observations were made from the inside of the building as to what was occurring outside.
[32] In response, the accused assert that the photographs add nothing of significance to the demonstrative aids. They have not been proved to be accurate and the dates of the photographs do not coincide exactly with relevant times.
[33] I am not convinced that photographs of the various residences and commercial properties will assist the jury's understanding or evaluation of the evidence, or the witnesses in giving the evidence. As a practical matter, the photographs clutter the maps which identify relevant locations. To the extent that a picture of any location becomes relevant in the course of testimony, a picture could be presented to the witness and if appropriate entered as an exhibit in the trial. Therefore, the Crown will not be permitted to embed photos in the maps presented as demonstrative aids.
[34] As a result of the decision not to allow the embedded photographs, it is unnecessary to deal with the accuracy and reliability of the Google Street View source.
Summary:
[35] For the foregoing reasons, the Crown may utilize demonstrative aids at the trial of this matter consisting of aerial maps of the city of Port Colborne containing an overlay of parcel boundaries and street names. Individual properties may be highlighted. Properties may be identified by municipal address and, where appropriate, commercial name. No other descriptors will be permitted.
[36] Larger scale maps showing smaller areas may be used as appropriate.
[37] There will be no prohibition on reference to "East Village" in the naming of individual maps.
[38] No photographs of buildings, except as captured in the aerial map photography are to be embedded in the maps.
[39] The Crown is permitted to highlight additional properties in addition to those contained in Exhibit 1 to this application and to use more or fewer maps than those contained in Exhibit 1. As was suggested by some counsel at the hearing, there should be no impediment to discussions between the Crown and counsel as to the final development of demonstrative aids for trial. If any dispute as to the final detail of the demonstrative aids cannot be resolved consensually, counsel can address the issue at trial.
[40] There will be a mid-trial and final instruction as to the purpose of the demonstrative aids and their permitted use by the jury.
Reid J.
Date: January 12, 2021