New & Notable: Roadside Utterances and ASAP

The recent ruling in R v Guenter, [2011] OJ No 2233 is notable for two reasons.  First, it deals with a recent hot topic, roadside statements.  In recent blogs I reviewed the Ontario Court of Appeal ruling in R v Soules, 2011 ONCA 429 [New & Notable: Compelled Roadside Statements] and the decision of Duncan J in R v Parol, 2011 ONCJ 292 [New & Notable/Quotable Quote: Compelled you say...] where Soules was considered.  In Guenter, although Soules is not mentioned - as it had not yet been release - Rutherford J makes the same distinction and point about the breadth and applicability of Soules.
Second, it addresses another recently rejuvenated topic, ASAP in the context of a breath demand.
Peter Guenter was involved in a collision with another vehicle at a T intersection which was controlled by lights.  Another motorist called police to report the collision.  Upon arrival an officer began to speak with Guenter and eventually arrested him for impaired operation.  As part of the grounds for arrest the officer relied upon utterances made by the accused; these included his utterances almost immediately upon the arrival of the officer that his "heart hurts" and that he was the driver.  The accused would later explain that his heart hurt because he hit the car and there was a family in it [para 5].  
In considering the first issue - what, if any use the Crown could make of the utterances - Rutherford J noted that when the utterances were made the police had not yet formulated any belief or grounds about what had occurred or who was involved [para 38].  Rutherford J further considered the applicability of R v White, [1999] SCJ No 28.  On that point he held that there was "nothing in the evidence to suggest that in confirming to Cst. Mathieu that he was the driver of the Pathfinder, Mr. Guenter did so under any subjective belief that he was compelled to do so by the terms of the Highway Traffic Act [para 40].  Accordingly, the utterances were admissible at the behest of the Crown. 
In considering the second issue - was the demand made ASAP - Rutherford J, noted that the demand was made by the arresting officer, after being reminded to do so, approximately one hour after arrest.  This failure, however, was "simple error, inadvertence, and nothing more".  Regardless of this error, however, the Crown had argued that there was a demand made ASAP by the breath technician and accordingly, it need not rely upon that demand [para 33].  Rutherford J noted the decisions cited by the Crown, R v Nassier, [1998] OJ No 2166 (SCJ), R v Dhaliwal, [2005] OJ No 1129 (SCJ) and R v Chilton, [2009] OJ No 3655 (SCJ) and concluded as follows:
In the circumstances of the case before me and in light of these previous decisions in this Court, I see no compelling reason not to find that Cst. Casey's demand that Mr. Guenter provide breath samples constituted lawful demands and suitable preconditions for the taking of the breath samples on which both the certificate tendered and the toxicologist's opinion evidence are based. The breath samples were lawfully taken and the evidence flowing from their analysis is admissible.
DG Mack

Comment: The Curative Proviso; to apply or not to apply, that is the question...

The curative proviso is a powerful tool on appeal; it is also one that often highly contentious. The Supreme Court's recent ruling in R v O'Brien, 2011 SCC 29 is yet another example of this.  In O'Brien the respondent was charged in relation to the robbery of a variety store; the robbery was committed by someone wearing a blue Halloween mask.  During the robbery a knife was also used.  The next morning the police recovered a blue Halloween mask, a large knife and the plastic cover from the store's cash register (that had been taken) near the store; subsequent DNA testing identified the assailant as a match.  
At trial [2009 NSSC 194] the DNA evidence become effectively the only evidence identifying the respondent as the robber.  During the course of the trial, both in chief and cross-examination, the investigating officer made reference to the respondent as a known offender and someone who the police knew well to be involved in criminal conduct [para 26].  No objection was made to this evidence being elicited.  The respondent was convicted and appealed.

On appeal [2010 NSCA 61] the respondent argued that the bad character evidence was inadmissible and impacted on the verdict.  The Crown agreed that it was inadmissible but argued that the curative proviso should apply.  The majority allowed the appeal and ordered a new trial.  Fichaud JA, in dissent, would have applied the curative proviso, noting that the error was harmless:
The trial judge’s written reasons satisfy me affirmatively that the improper evidence had no impact.  This, in my view, satisfies the Crown’s burden under the proviso.  The judge’s words that he relied “entirely on the DNA evidence” to connect Mr. O’Brien to the robbery exclude any imputation to the judge of a veiled line of reasoning sourced in [the investigating officer’s] problematic testimony.  My colleague does not explain how such a veiled line of reasoning can co-exist with the judge’s clear statement that he relied “entirely on the DNA evidence.”  My colleague says that if the judge had “arrived at his conclusion by expressly relying on evidence untainted by the impugned evidence”, he might take a different view of the proviso.  By my reading of the decision, that is what the judge did. . . .
. . . Nothing in the decision suggests, even obliquely, that [the investigating officer’s] improper character testimony figured in the identification. [para 10]
The Crown appealed.  Abella J on behalf of the majority allowed the Crown's appeal.  It was clear, she held, that the trial judge relied "entirely" on the DNA evidence and therefore did not rely on the bad character evidence.  The following comments (an honourable mention for the "quotable quotes" section) are instructive:
The trial judge said in his reasons that he relied “entirely” on the DNA evidence (para. 8).  That meant that he did not rely on the character evidence.  Imputing such reliance into reasons that state the contrary creates a new, unchartable universe of appellate review where even if the reasons reveal a proper grasp of the facts and the law, the trial judge may nonetheless find the integrity of his or her decision undermined by the possibility that judicial silence on an issue will be interpreted as “unconscious” judicial error [para 16].  [Emphasis added]. 
In conclusion, Abella J held that the curative proviso should apply; the error was harmless.
In dissent, Binnie J would not have applied the curative proviso.  In so concluding Binnie J first noted his disagreement with the interpretation of "entirely":
Nor should the Court’s refusal of a new trial hang on the thread of the trial judge’s use of the word “entirely” which — it seems to me — just reflects the fact that there was no other identification evidence before him.  If he had intended by the word “entirely” to distance himself from the inadmissible propensity evidence, I expect he would have said so [para 35].
Based on this, Binnie J found that the error was not harmless as the potential danger of the inadmissible evidence could not simply be ignored based on the reference to "entirely". 
A couple of points are worth noting in relation to this decision.  First, the impending decision in R v Sarrazin (on appeal from the Ontario Court of Appeal 2010 ONCA 577) should be interesting.  Given the differing views the members of the Court appear to have on the applicability of the curative proviso, it will be interesting to see how they handle Doherty JA's refusal to apply the curative proviso on the view that the failure to leave attempted murder with a jury that returned a guilty verdict on murder could have subconsciously impacted on their deliberations and verdict - especially in the absence of any indication that it did.
Second, there is an interesting reference to R v Mars, 2006 CanLII 3460 (ON CA).  In Mars the Ontario Court of Appeal overturned a verdict essentially finding that since the only evidence was a fingerprint found on a pizza box linked to the offence the verdict was unreasonable.  Here, the majority of the Court of Appeal held that the verdict - based "entirely" on the respondent's DNA being on items linked to the robbery - was not unreasonable.  Interestingly, on appeal to the Supreme Court the only issue appears to have been the applicability of the curative proviso.  It would be an interesting exercise - and perhaps the subject of another blog - to compare the ratio of Mars and the NSCA's decision in O'Brien.
DG Mack

Quotable Quote: Why did he recant, well...

On June 22, 1633 Galileo offered his now infamous recantation declaring that he would there forward "abandon the false opinion that the sun is the centre of the world and immovable, and that the earth is not the centre of the work, and moves...".  He did so, as noted in his abjuration, as the Holy Office had pronounced him "vehemently to be suspected of heresy".  One might infer from the circumstances that he did so for other reasons; perhaps to avoid a sentence worse than the prison sentence he did receive. 
In the recent case of R v Snyder, 2011 ONCA 445, Doherty JA reflected upon pressure that might have been placed on a suspected recanting witness, Stuart Burgess; admittedly, Kyle Snyder probably had less sophisticated ways of encouraging Burgess to recant but apparently no less effective. 
Burgess and another fella, Kevin Doucette had broken into a residence intent on robbing a drug dealer.  Unfortunately for them, the drug dealer had moved out about a month earlier; more misfortune befell the two when the drug dealer's brother turned out to be living there and a fight ensued.  Burgess was slashed across the face and Doucette was stabbed.  
Doucette and Burgess were both arrested charged and ultimately pleaded guilty to robbery.  Burgess and Doucette both gave statements to the police that indicated that Snyder had asked them to commit the robbery [para 9].  At trial Burgess testified against Snyder indicating that Snyder promised to clear up a $600 drug debt if Burgess would do the robbery for him.  Burgess gave further details about the plan and the incident.  Snyder was convicted and appealed.
One of the grounds on appeal was based on fresh evidence in the form of a sworn affidavit from Burgess, some two years after the fact, in which Burgess stated that he falsely implicated Snyder and that Snyder in fact had nothing to do with the robbery.  
In considering the admissibility of the fresh evidence Doherty JA looked at whether it could have affected the verdict; in doing so, he noted that it called for "strict scrutiny" [para 63].  When applying that level of scrutiny, Doherty JA offered the following quotable quote in the context of what explanations may exist for the recantation thus demonstrating its lack of value as fresh evidence:
Absent any evidence explaining the origins of the recantation, there are at least two explanations that flow from the circumstances.  Either the witness, who was in custody and is clearly part of the criminal subculture, and who no longer had any reason to cooperate with the Crown, saw the opportunity to help out the appellant, another member of the criminal subculture, or the witness was under physical compulsion to recant his trial testimony.  According to the submissions made by Burgess's lawyer at the time of Burgess's sentencing, Burgess had been assaulted while in jail because of his cooperation with the Crown in this case.  Burgess also acknowledged in cross-examination that he had concerns about his safety in jail if he implicated others in criminal activity.  He related that concern to his refusal to identify the person whom he now claimed had actually asked him to perform the robbery [para 66] [emphasis added].
 
DG Mack

New & Notable/Quotable Quote: Compelled you say?

In a recent post I blogged about compelled statements and the case of R v Soules, 2011 ONCA 429. In that blog [New & Notable: Compelled Roadside Statements] I suggested that the ratio of Soules - that compelled roadside statements were not admissible at hte behest of the Crown not even on the issue of grounds - was limited to only "statutorily compelled statements"; it did not limit the use the Crown could make of other evidence obtained during impaired investigation or other utterances. In the recent decision of R v Parol, 2011 ONCJ 292 Duncan J held that Soules indeed does not affect other utterances, even ones made in the context of an accident, unless those were truly a "compelled report".
In Parol Duncan J considered whether two utterances made by the accused during an investigation into a motor vehicle accident were "compelled statements".  The police had attended and found the accused at the scene of an accident.  The officer asked the accused if was the driver and he replied "No English".  The officer then "charaded" the actions of steering a car and the accused said "yes".  The officer then charaded drinking out of a bottle and the accused said "yes" [para 12]. 
In order to find those utterances to be compelled Duncan J held that the accused must establish, on a Charter motion, that (1) he was compelled by statute to provide a report, (2) that the statements were a "report" and that (3) the "report" was given in a honest and reasonable belief he was compelled to do so [para 7].
Turning to consider those issues, Duncan J held - in relation to the second point as follows:
The Court in White made the distinction between the making of a report pursuant to statute and “ordinary police investigation”. Nothing could be more ordinary and natural than a police officer arriving at the scene of an accident and asking who was driving. If the exchange in issue here is considered a “report” then the “dividing line” drawn by the Court in White would be completely obliterated [para 13].
Turning to the third point, Duncan J offered the following quotable quote:
Respect for, or even fear of police may have contributed to his co-operation, but that is not the same thing as answering questions in order to comply with a known or suspected statutory obligation to report: R v Manley[2007] OJ No 5103. I have no doubt that had the situation involved not an accident but, say, an illegally parked car and the officer asked “Is this your car?” the defendant would similarly have answered the question.
I view this application as an attempt at strained re-casting of what occurred into an ill-fitting mould in order to achieve a desired legal end. I reject that attempt and find that the defendant did not make his statements as a result of any belief in a statutory duty to report an accident [paras 19 and 20]. [Emphasis added]. 
 
DG Mack

Comment: Exercising, or is it excising, Crown discretion...

Prosecutorial discretion is a vital aspect of the criminal justice system; in the recent case of R v Gill, 2011 ONSC 1145 Kiteley J delivered a significant blow to the its scope.
Richard Gill was stopped by the police after a 911 caller suggested he might be impaired - in part due to noting a bottle of vodka on the passenger seat of the car. The responding officer quickly formed the belief that Gill had alcohol in his body and made a demand for an ASD sample. Gill, however, apparently was not inclined to provide a breath sample and instead chose to attempt to walk away from the officer allegedly to call a lawyer. Gill was arrested and charged. After trial he was convicted [paras 5-13].

On sentencing the Crown filed notice of increased penalty. In response the accused raised two issues. First, he argued that the imposition of the mandatory minimum would violate section 12; this argument was soon abandoned in light of R v Ferguson, 2008 SCC 6. Second, he argued that the Crown's discretion to file the notice should be reviewed [para 7]. Borenstein J agreed. In so doing he held that the filing of the notice was not within the "core prosecutorial discretion" of the Crown and was reviewable on a standard of reasonableness - otherwise, the court held, section 727 would violate section 7 of the Charter. In that case, Borenstein J held the filing of notice was not reasonable [paras 8-13]. The Crown appealed.
On appeal Kiteley J first considered the issue of whether the filing of notice amounts to an exercise of core prosecutorial discretion [paras 31-48]. In doing so, Kiteley J first noted the Supreme Court's ruling in Krieger v Law Society of Alberta, 2002 SCC 65 wherein the Court defined core prosecutorial discretion as going to decisions about the nature and extent of the prosecution. Applying the principles from Krieger and other cases Kiteley J concluded:
...While it must be served before plea, the Notice of Intent to Seek Increased Penalty is an aspect of the sentencing phase of the trial, after the offender has been convicted. There is no longer a question of initiation, continuation or termination of the prosecution. Rather the decision to file the Notice could be characterized as tactical [para 44].
Having decided that the decision to file notice is not a core prosecutorial discretion Kiteley J turned to consider if the discretion was reviewable and on what standard [paras 49-58]. On this point Kiteley J held that where there was a basis to find that filing of the notice would violate section 7 a review as permissible; the standard of review being reasonableness.
Applying that to the appeal, Kiteley J held that it was appropriate for the trial judge to review the Crown's discretion and moreover, that the trial judge correctly found the Crown's exercise of discretion to be unreasonable; Kiteley J concluded: [The trial judge] was simply stating the obvious, namely that a decision based solely on four prior very dated convictions did not constitute a reasonable exercise of discretion [emphasis added].
With respect, I would not agree. Leaving aside for the sake of this comment the difficulty in the conclusion that the Crown's exercise of discretion to file notice based on four prior convictions is unreasonable, the real difficulty lies in the premise underlying the decision to review the Crown's discretion in the first place. The premise appears to be founded in a determination that the filing of notice could constitute a violation of section 7; this violation, in turn is founded on the premise that the sentencing scheme, as the Crown proposes it should be read, "violated a principle of fundamental justice, namely that Parliament or the Courts should be responsible for defining sentence, not the Crown" [para 54].
This premise should be rejected. Consider the instructive analysis of Rosborough J in R v Haneveld, 2008 ABPC 382:
At the outset, it must be recognized that some prosecutorial elections clearly falling within the doctrine of prosecutorial discretion as described in Krieger can have important effects on the sentencing process. An election to proceed by indictment, for instance, can have the effect of increasing the statutory maximum sentence for an offence with which the accused is charged. That, in turn, becomes a relevant consideration on the sentence hearing. See: R. v. Solowan, [2008] S.C.J. No. 55, 2008 SCC 62.
In his work, Due Process of Law (Toronto, Carswell Co. Ltd. 1977), Prof. S. Cohen makes note of the manner in which a Crown Prosecutor's election as to mode of trial can limit the Court's sentencing powers. He states (at pp. 143-4):
In allowing the prosecutor to select the mode of procedure (summary conviction or indictment proceedings) an important function of the judiciary is effectively usurped -- i.e. control over the choice of penalty. This is particularly the case when the offence itself carries a mandatory minimum jail term for proceeding by indictment. True, in the final analysis it is the judge who imposes and selects the appropriate sentence but the mode of procedure itself may deprive him of resort to dispositions which are more appropriate to the particular factual circumstances of a given offence. For example, where a minimum penalty is provided for an offence triable upon indictment (irrespective of whether that minimum penalty involves incarceration or not) the Criminal Code provisions concerning absolute and conditional discharges are not available, no matter how desirable." [Emphasis added].
This reasoning was adopted in R v Bolender, 2010 ONCJ 622. I would similarly adopt it. The decision by the Crown to file notice is one that goes to the nature and extent of the prosecution; such discretion, therefore, should only be reviewable in accordance with the principles in R v Power, [1994] 1 SCR 601.
DG Mack

New & Notable: Compelled Roadside Statements

Impaired investigations are apparently catching the attention of the Ontario Court of Appeal lately. In the recent case of R v Rivera, 2011 ONCA 225 [which I blogged about on May 24, 2011, New & Notable: Roadside Statements] the Court of Appeal considered the use of roadside statements in the context of a refusal. In R v Soules, 2011 ONCA 429 [SCA decision 2010 ONSC 1014; trial decision 2009 CarswellOnt 8925 (CJ)] the court considered the issue of what use if any the Crown may make of compelled statements.
Stephen Soules was apparently impaired (blowing 143 and 136) when he slammed into the back end of another vehicle causing a multi-vehicle collision. When the police arrived the respondent identified himself to the police as the driver and admitted to consuming alcohol. The attending officer ultimately formulated a reasonable suspicion and made a demand under section 254(2); after a failure was obtained the respondent was arrested for “over 80”.
At trial the respondent sought to exclude the admission that he was the driver based on an alleged violation of section 7; without this admission the Crown apparently could not prove that the officer had a reasonable suspicion – a finding which was apparently accepted by the trial judge but which is hard to accept [see R v Bush, 2010 ONCA 554].
The trial judge, relying upon R v White, 1999 CanLII 689 (SCC) and R v Powers, 2006 BCCA 454 held that the statements given by the respondent at the roadside were compelled by provincial highway traffic legislation and accordingly were inadmissible pursuant to section 7 of the Charter. The Crown appealed unsuccessfully to the summary conviction appeal court and subsequently appealed to the Ontario Court of Appeal.
LaForme JA, writing for a unanimous court, held dismissed the appeal. LaForme JA offered the following summary of the trial judge’s decision:
The trial judge accepted Mr. Soules’ evidence that he remained at the scene of the collision and answered the questions of Constable Bucci because he understood that he was required by law to do so. He held that the statements were statutorily compelled and inadmissible [para 9].
After analyzing Power and White, LaForme JA agreed with the trial judge that they were determinative; statutorily compelled admissions are not admissible, even for the limited purpose of establishing grounds [para 43].
There are two important points that are worth noting. First, the decision is only about statutorily compelled statements. It does not address, nor should it be interpreted as addressing, the use that can be made of any other evidence gathered by an officer during a roadside investigation.
This is borne out not only by the facts and argument but clearly by comments made by LaForme JA in the ruling. Consider for example the framing of the “key issue”:
The key issue is whether statements compelled under the Highway Traffic Act, R.S.O. 1990, c. H.8 are admissible in a criminal trial. Specifically, are the statements admissible for the purpose of establishing that an officer had grounds to make an approved screening device demand…[para 1].
Similarly, consider the LaForme JA’s rejection of the Crown’s attempt to analogize this situation with “compelled” ASD samples.
To illustrate its view, the Crown notes that a motorist’s compelled participation in an ASD test is admissible to support an officer’s grounds to make a breath demand: R v Thomsen, [1988] 1 S.C.R. 640. Therefore, the Crown argues, it must also be the case that compelled statements made at the scene of a collision are admissible when they are being used for the same limited purpose. The Crown points out that in both cases:
• the evidence emanates from the accused;
• they invoke the same level of concern regarding the potential for self-incrimination;
• it is an offence to fail to participate or cooperate with police; and,
• the evidence cannot be used at trial to prove an element of the offence.
I disagree. The Crown’s reliance on Thomsen and other like cases is misplaced, and for a very noteworthy reason: the questioning by police in those cases does not involve compelled answers. In each of them the motorist can refuse to answer if he or she chooses; they are not forcefully enlisted in aid of their own prosecution. For example, in the case of a breath demand made by a police officer pursuant to s. 254(5) of the Criminal Code, the motorist is legally obligated to comply with the demand; nevertheless, s. 7 continues to furnish him or her with the right to choose whether or not to speak with the police – a choice statutory compulsion clearly eradicates. There is absolutely no legal compulsion to speak or provide information in any of the cases cited [paras 41 and 42].
These passages make clear that the issue in the case relates only to compelled statements.
Second, the decision only applies to “statutorily compelled statements” and does not, therefore, limit the use of statements made by an accused during a routine highway traffic stop.

 
DG Mack

Quotable Quote: Sentence - Consequences Matter

The recent ruling in R v Woodward, 2011 BCCA 251 provides a quotable quote on the importance of consequences in sentencing.  In Woodward the appellant had attended a local bar that was predominantly, but not exclusively, frequented by the gay, lesbian and transgender crowd. The victim, William Dowrey was at the bar that evening as well; he was 61 years old and was celebrating his retirement.  Neither Dowrey or the appellant were gay [para 2]. During the evening Dowrey on two separate occasions approached the appellant and offered to buy him a drink.  On the first occasion the appellant stated "No. I'm not like that".  On the second occasion Dowrey asked the appellant if he wanted to play pool and the appellant stated "I don't want a drink, I don't want to play pool, I just want to be left alone".   
Shortly after this incident the appellant had apparently decided to leave; before doing so, however, he approached Dowrey.  He punched Dowrey in the face.  The punch was of such force that he knock Dowrey unconscious.  Dowrey fell and struck his head.  As a result of the punch and fall Dowrey suffered a catastrophic brain injury [para 9]. 
Dowrey survived.  He was in the hospital for four months.  Dowrey has "permanent cognitive, memory, behavioural, and psychomotor disabilities.  He will forever be incapable of living on his own" [para 11].
The appellant was convicted after trial [2010 BCPC 177] and sentenced by the trial judge to six years jail [2010 BCPC 271].  On appeal the appellant argued, inter alia, that the trial judge erred by placing too much emphasis on the victim's injuries.  In doing so, the appellant asserted that there was an "element of chance" in the injuries and that the injuries were unusual for a single punch [para 31].  The Court of Appeal rejected this argument and offered the following quotable quote:
Once again, the facts do not support this submission.  As previously mentioned, Mr. Woodward went out of his way to deliver a punishing blow to a person who could not have anticipated being attacked and was, therefore, completely defenceless.  While Mr. Woodward may not have intended to change Mr. Dowrey's life forever, he did intend to harm him by using force that Mr. Woodward knew, or ought to have known, had the potential to inflict serious injury.  The fact that this was, to use Mr. Woodward's terminology, a 'one punch assault' does not lessen the gravity of what he did" [emphasis added] [para 32]

DG Mack

New & Notable: Cell Phone Evidence

A debate has been brewing for the last few years over the issue of cell phone evidence.  In Ontario there have been decisions holding that evidence about cell phone records, including interpreting the records, identifying tower locations and explaining the way in which phones communicate with towers is expert evidence requiring a voir dire; those decisions also held that the usual witnesses (corporate security personnel who gather the evidence and have, for several years testified in this area) are not "experts" on this issue: see R v Spackman, [2009] OJ No 1066 (SCJ) and R v MacFarlane, [2006] OJ No 4858 (SCJ). 
In Manitoba, on the other hand, there have been decisions holding that such evidence is not in fact "expert" evidence but rather it was factual evidence: see R v Korski, [2007] MJ No 275 (QB), aff'd 2009 MBCA 37.
In the recent case of R v Hamilton, 2011 ONCA 399 the Ontario Court of Appeal has sided with the Manitoba approach, implicitly overruling MacFarlane and Spackman - at least in part. In Hamilton, for the first time on appeal, the appellants argued that the trial judge erred in admitting the evidence of non-engineers and erred by failing to conduct a voir dire.  The Court of Appeal rejected this argument on the basis, inter alia, that the evidence in question is not expert evidence: 
...we are satisfied that the evidence given by the three employees of the carrier companies was factual evidence, not opinion evidence.  Each of them, by reason of their knowledge, observation and experience in dealing with cell phones for their respective companies could give the testimony they provided without being qualified as experts. They could testify about the times each appellant’s cell phone registered, the number calling and the number called, the duration of the call and the location of the towers at which the calls registered.  These were factual details on which the carriers based their billing practices.  Further, these employees had the knowledge and experience to testify about the general rule and its exceptions.  They did not have to understand the scientific and technical underpinnings of the rule or have an engineering degree to give this evidence. 
It is perhaps understandable why some courts in years past treated this kind of evidence as opinion evidence.  The introduction of cell phone evidence in criminal trials was in its infancy. Now, with the benefit of hindsight, we know that this evidence is routinely admitted: see, for example, R. v. Tomlinson, [2008] O.J. No. 817 (S.C.J.), R. v. H.B., [2009] O.J. No. 1088 (S.C.J.), R. v. Smith, [2009] O.J. No. 4544 (S.C.J.).
Even if evidence about the general rule and its exceptions could at one time have been considered opinion evidence, it is now simply factual evidence that witnesses with the knowledge and experience of Mr. Rickard, Mr. Iaccio and Ms. Hopper can testify about. They were not proffering a novel scientific or behavioral theory that was open to debate. They were testifying about uncontroversial facts related to the operation of cell phone networks. As the trial judge noted, their evidence was essentially the same as the evidence that could have been given by an engineer. Indeed, an engineer, Mr. Wang, gave largely the same evidence about the general rule at the preliminary inquiry. With the benefit of that testimony, no appellant insisted that an engineer give this evidence at trial. 
Importantly, none of the three cell phone witnesses was asked to give an opinion about the precise location of an appellant’s cell phone when a particular call was made or received. Evidence of that nature might well be opinion evidence and subject to the Mohan criteria: see R. v. Ranger, 2010 ONCA 759, at para. 17. Testimony about the general rule and its exceptions is not opinion evidence, and thus no voir dire was necessary. 
Accordingly, we do not give effect to the appellants’ challenge to the admissibility of the cell phone evidence. [paras 277-284] [emphasis added].
 
DG Mack

Quotable Quotes: The Criminal Trial

In the recent case of R v Hamilton, 2011 ONCA 399 the Ontario Court of Appeal considered the issue of interventions by the trial judge during a long and difficult murder trial. Two of the appellants argued on appeal that various interventions by the trial judge undermined the fairness of the trial [paras 35-42]. 
In dealing with this ground of appeal, the court first offered the following succinct summary on the approach to this issue:
When evaluating interventions by a trial judge, the fundamental question is whether the interventions led to an unfair trial: R v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.), at p. 232, application for leave to appeal dismissed, [1986] S.C.C.A. No. 62. This assessment is made from the perspective of a reasonable observer present throughout the trial: R v. Stucky (2009), 240 C.C.C. (3d) 141 (Ont. C.A.), at para. 72.  Isolated expressions of impatience or annoyance by a trial judge as a result of frustrations, particularly with counsel, do not in themselves create unfairness [para 30].
After reviewing in detail the impugned interventions, the Court of Appeal offered the following quotable quote:
At a time when we are concerned about the increasing cost and length of criminal trials as well as their drain on resources and the pressures they bring to bear on the administration of justice, appropriate trial management is to be encouraged, not muted. In a case of this complexity and size, a good deal of deference is owed to an experienced trial judge who lived those dynamics for many months; dynamics that must have impacted on his decision to intervene from time to time. A microscopic analysis of interventions by a trial judge in large cases such as this should be avoided [para 49] [emphasis added].

DG Mack