Les témoignages des personnes travaillant pour des compagnies de téléphonie concernant les tours cellulaires sont considérés comme relevant des témoins de faits

R. v. Hamilton, 2011 ONCA 399

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[277]      However, 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. 

[278]      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.).

[279]      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. 

[280]      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. 

[281]       The Crown in closing submissions to the jury made it clear that the cell phone witnesses were not giving evidence of the precise location of a cell phone:

The evidence makes it clear, however, that there are significant limitations on the ability of records to precisely identify a phone’s location.  In substance, where the records indicate that a phone is registering on a particular cell tower, there is a probability but not a certainty that the phone is somewhere within the expected coverage area of the cell site. The general rule from all of – that we heard from Mike Rickard who represented Bell Mobility, Sal Iaccio who represented Telus Mobility, and Ms. Hopper who represented Rogers AT&T was that the phone registers on the tower with the strongest signal and that usually is the closest tower, but there are definite exceptions to that general rule, and in your experience and your common sense, general rules always have exceptions.

[282]      Additionally, the jury would have had no difficulty in understanding the cell phone location evidence, especially after it was summarized in a PowerPoint presentation.  That presentation undoubtedly clarified the evidence and put to rest any possibility the jury might have been confused by it.  The presentation of the cell phone evidence did take a fair amount of time, seven days.  But in the context of a four-month trial, this was not an overly long amount of time. 

[283]      Finally, the probative value of this evidence strongly favoured its admission.  In a case where identity was the key issue at trial, the cell phone evidence was highly probative circumstantial evidence of the general location of three of the appellants, Hamilton, Schloss and Davis, at the critical times.