R. v Barreira et al., 2017 CanLII 30760 (ON SC)
[97] In the recent case of R. v. Kanagasivam, [2016] ONSC 2250, my former colleague from Brampton, Justice Fairburn was dealing with PowerPoint presentations being forwarded by the Crown and provides a useful summary of the law regarding demonstrative evidence and what is and is not admissible at paras. 36 - 57 and paras. 73, 74:
Initial Ruling
36 The PPTs as originally created were problematic and I excluded them from evidence and precluded the Crown from using them in its closing address.
37 We have been living in the age of technology for some time and it has come to define much of what we do and how we do it. The march of technology has played out in all aspects of life. The justice system is no stranger to this reality. Today, technology is used to create evidence, technology is used to gather evidence and technology is used to elicit evidence. The copious cell phone evidence in this trial is an example of these 3 aspects of technology and law at work.
38 Undoubtedly, technology can be a powerful tool in a criminal courtroom. When used correctly, it can streamline criminal proceedings and allow for easier comprehension of vast quantities of evidence. There is nothing wrong, and much right, with using technology in the courtroom to achieve these laudable objectives. At the same time, we have to ensure that the lure of technology does not serve to overtake long-standing and critically important rules of evidence. Like anything, where technology is used to create evidence for and elicit evidence in the criminal courtroom, we must ask the basis of admissibility. Ultimately, the probative value of the evidence must outweigh its potential prejudicial impact.
39 The use of PPT in a courtroom is not novel. Indeed, a PPT was used without objection in this case. At the outset of Ms. Jackson's evidence, she used one to educate the jury respecting the general workings of the Rogers cellular network and the customer records maintained by Rogers. PPT presentations are an important means by which to package and present information. As Heeney J. noted in R. v. Sandham, 2009 CanLII 58982 (ON SC), [2009] O.J. No. 4517 (S.C.), at para. 22, aff'd on other grounds 2015 ONCA 250, PPT presentations have become a "norm in virtually any class at university".
40 Just because PPTs are helpful educational tools, though, does not mean they are admissible in evidence. The basis of admissibility must be explored. Here, the Crown argued that the PPTs were demonstrative aids.
41 There are different forms of demonstrative or illustrative evidence. Sometimes a chart or summary will be produced to assist the trier of fact with organizing and clarifying evidence already filed. As noted in S.C. Hill et al., McWilliams' Canadian Criminal Evidence, 5th ed., Toronto: Canada Law Book, 2013 (loose-leaf updated 2015, release 4), at 23:30:60, demonstrative aids are sometimes used to "effectively synthesize...[c]umbersome and confusing evidence". This type of evidence, such as a schedule or summary, may be admitted to assist the trier of fact in understanding and evaluating evidence already filed. The usefulness of the summary will depend on whether the trier of fact accepts the proof of facts upon which the summary rests.
42 For instance, in cases where a large body of documents have been filed, a party may wish to have them summarized so that their salient and germane points are teased out: see R. v. Scheel (1978), 1978 CanLII 2414 (ON CA), 42 C.C.C. (2d) 31 (Ont. C.A.). Using demonstrative aids of this nature can serve to truncate what might otherwise take days of evidence to amplify. It can also ease the jury's task by abbreviating what could be countless hours spent wading through and distilling data during the fact finding process.
43 Where evidence has been properly adduced at trial, summaries of that evidence can be prepared to assist the trier of fact with understanding the entire picture represented by the voluminous documents. As noted in Wigmore on Evidence, J.H. Chadbourn rev. (Boston: Aspen Publishers Inc., 1972), Vol. 4, at p. 535:
Where a fact could be ascertained only by the inspection of a large number of documents made up of very numerous detailed statements -- as, the net balance resulting from a year's vouchers of a treasurer or a year's accounts in a bank ledger -- it is obvious that it would often be practically out of the question to apply the present principle by requiring the production of the entire mass of documents and entries to be perused by the jury or read aloud to them. The convenience of trials demands that other evidence be allowed to be offered, in the shape of the testimony of a competent witness who has perused the entire mass and will state summarily the next result. Such a practice is well established to be proper.
See also: S.C. Hill et al., McWilliams' Canadian Criminal Evidence, at 23:30:60.
44 Allowing for summaries to be filed, though, does not alleviate the trier of fact from accepting the facts upon which the summary rests. As Martin J.A. warned in Scheel, the usefulness of summaries depends entirely on "the acceptance by the jury of the proof of the facts upon which the summaries are based": see Scheel, at para. 13.
45 A demonstrative aid that distils a large amount of information previously admitted in a trial, can serve multiple purposes, which include: (1) promoting trial efficiency; (2) organizing information already received in the trial; (3) decreasing the potential for confusion among the triers of fact; and (4) streamlining the task of the triers of fact.
46 There is some precedent for a PPT presentation being used to plot cell tower and phone information. In R. v. Hamilton, 2011 ONCA 399, leave ref'd [2011] S.C.C.A. No. 511 (Hamilton), a case involving the heavy use of cell tower location evidence to establish identity, the court commented upon the use of PPTs to summarize the cell phone records. After witnesses from three phone providers testified, and records had been filed, the tower information from the records was distilled into PPT presentations. An officer was put on the stand to testify about the content of the PPTs. The court commented that the jury would have had no difficulty in understanding the cell phone evidence once it had been summarised in PPT format: see Hamilton, at paras. 265, 282.
47 In long, complex cases, a trial judge has the discretion to allow summaries and aids to go to the jury to assist them with understanding the evidence "reasonably, intelligently and expeditiously": see R. v Basi, 2010 BCSC 713, at para. 9.
48 Assistance should be given to a jury where review of the evidence by them would be cumbersome, unduly time consuming, and confusing. Jurors are selected to assess the facts of a case, not so that they can be tested on their abilities to locate needles in haystacks. Any tools that they can be provided to perform their role as fact finders, fairly, with an even hand, and in accordance with the rules of evidence, should be accommodated. As noted by Doherty J.A. in R. v. Poitras, 2002 CanLII 23583 (ON CA), [2002] O.J. No. 25 (C.A.), at para. 46, albeit in the context of providing written instructions to jurors, "[j]uries need whatever help judges can give them".
49 Demonstrative or illustrative aids in the form of summaries of otherwise admissible and admitted evidence are not meant to be tools for advocacy or to paint a picture of one party's position: see R. v. Myles, [2011] O.J. No. 6686 (S.C.). Rather, they are meant to facilitate juror comprehension of the facts by clarifying and distilling them into a manageable and understandable format.
50 I found that the originally proposed PPTs contained numerous flaws. While they were meticulously prepared by the analyst, in accordance with instructions given, and with great attention to detail, the end product resulted in something that I found could confuse and potentially mislead the jury.
51 First, I found the end product somewhat confusing. The sample page set out earlier in my reasons gives a glimpse into what the PPT slides looked like: multiple dots, dots over dots, lines over lines, with no sense of direction, time, or space.
52 Second, while I am sure that it was entirely unintentional, I agree with defence counsel that the originally proposed PPTs had the potential to be misleading. By way of example, by placing dots over dots, they left the impression that certain accused were at the same place at the same time, when in fact they may have used the same tower minutes and even hours apart. The lines crossing lines left the impression that accused crossed paths during the night or may have even been in the same exact location at the same time. Having so many coloured dots on each slide, ostensibly distinguished in some cases by only slight differences in shade, could leave the jury with a misunderstanding as to which phone was using which tower at which time.
53 Third, the legends contained on the slides referred to the names of accused that the Crown maintained were using phones on the night in question. As shown on the sample page reproduced earlier in my reasons, a number was always followed by a name. The reality is, though, that there was no telling whether an accused or former accused was using his phone, or even if it was in fact his phone, at the time in question. These things were squarely in dispute in the case, yet the legends on the slides could make it appear that the phones were in fact being used by each of the accused and former accused. While it was open to the jury to draw this inference, it was far from a foregone conclusion. As indicated above, identity was the crucial issue in this trial.
54 Fourth, the PPTs assumed facts. Beyond creating the visual appearance of assuming what accused were using what phones during a particular event, they also assumed when particular events occurred. Some witnesses were only able to give a window of time within which an event occurred. By placing the events in what was said to be chronological order, assumptions about times were made that did not necessarily accord with fact. Where this occurred, the assumptions accorded more with what the Crown's position was about the timing of an event. By doing this, in some situations, the PPTs reinforced what was in dispute in the case and what was critically important to the core question of identity.
55 Fifth, the PPTs gave a complete roadmap to the Crown's case. By plotting the times that events were said to take place, relative to cell tower usage, truck movement and so on, they gave the jury a window into what the Crown would say (and did say) during its closing address. As noted by Boswell J. in R. v. Pan, [2014] O.J. No. 5969 (S.C.) [Pan 1], who carefully analysed a similar admissibility issue, there is a level of unfairness involved in allowing the Crown two closing addresses: Pan 1, para. 67. Had the PPTs, as they originally appeared, been played for the jury, they would have been tantamount to a closing address.
56 As above, while the Crown agreed that they would not play the PPTs during the evidentiary portion of the trial, the Crown wanted them marked as an exhibit and to go back to the jury room. Every case is unique. In this case, among other things, given how the PPTs were created and what they depicted, what evidence they relied upon, and what evidence was in dispute, allowing the PPTs in their original format into the jury room would be the equivalent of having the Crown's closing argument in the jury room during deliberations. In this case, this would not be fair.
57 The PPTs were ruled inadmissible.
73 In the end, the jury needed assistance in distilling the records filed. There were simply too many records to reasonably ask the jury to go through them, line-by-line-by-line, and ask them to then turn between multiple documents to determine locations and subscriber information. The prospect of spending a great deal more court time, delving further into this microscopic evidence, seemed antithetical to concerns over trial economy. In the end, Mr. Sachdeva's evidence could be (and was) led quickly and efficiently. The evidence would leave the trier of fact with a clear understanding of how the PPTs were prepared and how they should be approached. This could be and was complemented by instructions to the jury about how to approach the PPTs.
74 The final PPTs did not assume things that the jury had to find as fact. They did not advance one side's position. Rather, they distilled information that was otherwise admissible and admitted in the trial. It eliminated what would otherwise have necessitated weeks of additional trial time and additional confusion arising from the plethora of records in evidence.
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