



COURT OF APPEAL FOR ONTARIO

CITATION:
R. v. Cyr, 2012 ONCA
    919

DATE: 20121227

DOCKET: C51817

Weiler, Watt and Epstein JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Paul Leonard Cyr

Appellant

Anida Chiodo and Joseph Wilkinson, for the appellant

Susan Magotiaux, for the respondent

Heard: May 3, 2012

On appeal from the convictions entered by Justice J.
    Bryan Shaughnessy of the Superior Court of Justice, sitting with a jury, on
    June 30, 2009.

Watt
    J.A.:

[1]

A jury decided that
    Paul Cyr (the appellant) was not only a chicken thief but also a killer. A
    chicken thief because he hijacked a tractor-trailer unit carrying about 14,000
    kilograms of frozen chickens, then sold the chickens to some food wholesalers
    eager for a bargain. A killer because he shot the truck driver in the back of
    the head and left him dead in the cab of his truck.

[2]

The appellant was
    convicted of first degree murder and of theft. He seeks a new trial. He says
    that his first trial was flawed because the trial judge admitted some evidence
    about cell phone calls that should have been excluded, and didnt charge the
    jury correctly on the position of the defence and the evidentiary value of the
    appellants statement to the police.

[3]

These reasons explain
    why I am satisfied that neither the trial judges evidentiary rulings nor his
    instructions to the jury reflect error, and would dismiss the appeal.

The background facts

[4]

Donald Woods (the
    deceased) and the appellant were commercial truck drivers. The deceased worked
    for AK Brothers. The appellant worked for his brother, Jacques Cyr at JC
    Drivers.

[5]

In June 2006, Woods was
    interested in working for JC Drivers and planned to meet with the appellant to
    discuss employment prospects. The appellant was aware of Woods interest.

[6]

On June 21, 2006, Woods
    was driving a load of frozen chicken, weighing nearly 14,000 kilograms, from
    Drummondville, Quebec to Toronto. The load had been brokered to AK Brothers
    through JC Drivers, apparently a common practice between the two companies. Jacques
    Cyr did not know that Woods was the driver assigned to this load.

[7]

On the same day, Jacques
    Cyr and the appellant picked up separate loads of frozen food in Brampton for
    delivery to Quebec. The appellants load was to be delivered the following
    morning, June 22, 2006.

The Planned Meeting

[8]

On his way from
    Drummondville to Toronto, Donald Woods stopped in Brockville to speak with his
    wife.  He told his wife that he planned to meet up with some people from JC
    Drivers to talk about changing employers from AK Brothers to JC Drivers.

[9]

Around 6:00 p.m. on
    June 21, 2006, the deceaseds cell phone received a call from a payphone
    located at an Esso station off the 401 near Newtonville, Ontario. The appellant
    had dinner with his brother at an Esso station near Newtonville the same
    evening. The call was charged to a calling card used only once before, to call
    from Montreal (near where the appellant lived) to M & S Produce, a food
    supply company whose telephone number was found in a log book located in the
    appellants truck.

[10]

As
    the deceased approached the 10 Acre Truck Stop near Belleville, he called his
    wife on his cell phone. He explained that he was supposed to meet someone from
    JC Drivers to talk about a job, but that he was very tired and wanted to rest.
    His wife told him to go through with the meeting and sleep afterwards.

The 10 Acre Truck Stop

[11]

The
    appellant called his brother on his cell phone to tell him that he (the
    appellant) was going to pull over at Belleville for some rest and to refuel the
    truck.

[12]

The
    appellant arrived at the 10 Acre Truck Stop at 8:13 p.m. on June 21, 2006.

[13]

Woods
    arrived at the 10 Acre Truck Stop at 11:41 p.m. on June 21, 2006. He was never
    heard from again.

The Departure of the Deceaseds Truck

[14]

The
    deceaseds truck left the 10 Acre Truck Stop at 12:06 a.m. on June 22, 2006,
    about 25 minutes after Woods had told his wife that he was very tired and
    wanted to sleep.

[15]

The
    appellants truck remained at the 10 Acre Truck Stop until 11:42 p.m. on June
    22, 2006.

The Telephone Calls to Food
    Wholesalers

[16]

In
    June, 2006 Dominic Yau, a food wholesaler in the GTA, had discussions with a
    man who had been referred to him by Gary Kwok. The man, whom Yau remembered as Paul,
    was a white-skinned, very fit truck driver with arm tattoos.  The description
    provided by Yau fits the appellant. Yau couldnt take the volume of chicken
    being offered so he referred the man to Mark Pang of Tai Wah Trade, who agreed
    to buy the deeply discounted chicken. Pang recalled speaking to someone, who
    could have had the name Paul, or some other name, about buying chicken. The
    man said he would soon have a load of cheap chicken for sale.

[17]

Records
    for the appellants cell phone confirmed calls to and from numbers associated
    with Kwok, Yau, and Tai Wah Trade, including several calls between June 15 and
    June 20, 2006, between the phones of the appellant and Mark Pang.

[18]

Mark
    Pang testified that he spoke by telephone with the person offering the
    discounted chicken the day before it was delivered.

The Delivery of the Chicken

[19]

Between
    2:43 a.m. and 7:59 a.m. on June 22, 2006, 19 calls were made from the
    appellants cell phone to telephones at Tai Wah Trade. Every call was routed
    through a cell tower northwest of Tai Wah Trades business premises.

[20]

Shortly
    after 8:00 a.m. on June 22, 2006, Mark Pang arrived for work at Tai Wah Trade.
    There, he met a man in a white truck waiting to unload and sell Pang a load of
    very cheap frozen chicken. This man, who could have been named Paul, demanded
    payment in cash. The two men unloaded the chicken. The weights on the boxes
    Pang purchased matched the weights on the missing load from Woods truck. Pang
    and the man drove to another wholesaler to unload more chicken.

[21]

Pang
    paid the man some of the money in cash on delivery, but told the man he would
    have to return later to collect the balance. The man came back around 5:00 or
    6:00 p.m. to collect the outstanding balance.

[22]

Pang
    felt sure he could identify the chicken seller if he saw him again. He failed
    to pick out the appellants photograph from a line up about four months later.
    There was evidence that the appellants appearance in the photo was quite
    different than it had been in June 2006.

[23]

During
    the afternoon of June 21, 2006, the appellants cell phone made and received
    several calls all routed through cell towers in Markham and Toronto.

The Return Trip

[24]

Donald
    Carpentier, a truck driver employed by Nish Transport, made a pick up at M
    & S Quality Produce in Markham around 4:00 p.m. on June 22, 2006.  The
    appellant was there talking with the owners of M & S with whom he seemed
    quite familiar. The appellant told Carpentier that he needed a ride to Belleville
    where his truck was being repaired. Carpentier agreed to take the appellant
    with him. The men shared driving responsibilities on the way to Belleville.

[25]

The
    appellant and Carpentier arrived at the 10 Acre Truck Stop around
    8:30 p.m. on June 22, 2006. The appellant put his bag in his white truck
    and had dinner with Carpentier at the Truck Stop. Carpentier went to his truck
    to sleep.

The Inquiry

[26]

Around
    11:30 p.m. on June 22, 2006, Carpentier was awakened by a conversation between
    the appellant and a woman who was standing outside the appellants truck. The
    woman was Nicole Woods, the deceaseds wife, who was making inquiries about her
    husbands whereabouts.

[27]

Carpentier
    left the 10 Acre Truck Stop after he was awakened by the womans inquiries. The
    appellant left at 11:42 p.m.

The Explanation

[28]

Jacques
    Cyr retrieved a phone message from his brother on the morning of June 22, 2006,
    that the refrigeration unit on his truck wasnt working properly and required
    repair. Later that night, the appellant told Jacques that the unit was working
    properly. When finally delivered on June 26, 2006, the frozen food contained in
    the trailer of the appellants truck was still frozen. No invoices for repairs
    to the refrigeration unit were ever produced.

The Finding of the Body

[29]

Early
    on the morning of June 23, 2006, a Walmart employee in Pickering noticed a
    large white truck in a laneway outside the store and reported the discovery to
    police.

[30]

Police
    entered the truck and found Donald Woods body on the floor of the truck cab.
    His hands were close together behind his back, but untied. Woods DNA was found
    on a plastic tie in the cab. Woods died from a gunshot wound to the back of the
    head. No forensic evidence linked the appellant to the deceaseds truck.

The Appellants Version

[31]

The
    appellant did not testify. During a police interview introduced at trial as part
    of the Crowns case, he denied any involvement in and knowledge of the killing
    of the deceased. The Crown alleged several responses of the appellant during
    the interview were proven false by other evidence and that the interview
    contained several strategic omissions, including any mention of the allegedly
    defective refrigeration unit on the appellants truck.

[32]

At
    trial, the position advanced on the appellants behalf was that he never met
    the deceased at the Truck Stop and had nothing to do with his death or the theft
    of his truck and its load. The appellant went to Toronto because he left his
    truck at the Truck Stop so that the refrigeration unit could be repaired. He
    hitched a ride back to the Truck Stop. No forensic evidence linked him to the
    deceased or his vehicle.

the grounds of appeal

[33]

The
    appellant advances four grounds of appeal.

[34]

Two
    grounds have to do with the reception of evidence about telephone calls made to
    and from the appellants cell phone. The appellant says the cell phone
    propagation maps  maps of cell phone tower locations in a geographical area
    activated by the cell phone used by the appellant - and the results of test
    calls made by a police officer should not have been admitted.

[35]

The
    other two grounds of appeal are two alleged omissions in the trial judges
    final instructions to the jury: failing to include - within a
W. (D.)
instruction - exculpatory evidence beyond the police interview, and  failing to
    distinguish between disbelief and fabrication in connection with alleged lies
    in the appellants statement to police.

[36]

I
    will consider the claimed shortcomings in the charge, and thereafter, the evidentiary
    grounds relating to the cell phone calls.

Ground #1: The
W. (D.)
Instruction

[37]

The
    first ground of appeal does not allege any error in the substance of the
W. (D.)
instruction, rather the appellant complains of a failure to include within it
    potentially exculpatory evidence beyond the appellants police interview. The
    result, according to the appellant, was a failure to relate crucial aspects of
    the evidence adduced at trial to the position of the defence so that jurors
    would appreciate the value and effect of that evidence.

The Additional Background

[38]

The
    Crowns position was that the chicken seller was, at once, the chicken thief
    and the person who killed Donald Woods.

[39]

At
    its most basic, the defence position at trial was that the appellant never met
    Donald Woods at the 10 Acre Truck Stop on June 21, 2006, and was not the person
    who stole his truck, trailer, and load, sold the chicken to the wholesalers,
    and killed him. The police interview, introduced as part of the Crowns case,
    contained the core of the appellants defence.

[40]

At
    trial, the appellant relied on Pangs failure to identify him as the chicken
    seller as evidence supportive of his denial of involvement. Pang also said that
    the chicken seller returned at 5:30 p.m. for the balance of payment . The
    appellant left with Carpentier at 4:00 p.m. If Pangs evidence regarding the
    time the chicken seller returned was correct, the killer could not have been
    the appellant.

[41]

The
    Crowns position was that Pang was mistaken about the time the  chicken seller
    returned for the balance of payment, and was either mistaken or deliberately
    dishonest when he failed to identify the appellant in the photo line-up. If the
    chicken seller returned before 4:00 p.m., there was no conflict between Pangs
    evidence and the testimony of Carpentier.

The Arguments on Appeal

[42]

For
    the appellant, Mr. Wilkinson says that the trial judge erred in omitting to   refer
    to the evidence of Pangs inability to identify the appellant as the chicken
    seller, in the
W. (D.)
instruction provided at trial.

[43]

Mr.
    Wilkinson contends that this evidence, of Pangs failure to identify the
    appellant as the chicken seller, was crucial evidence that rebutted the Crowns
    contention that the chicken seller was the chicken thief and the killer of
    Donald Woods. This evidence should have been the subject of a
W. (D.)
instruction, especially because Crown counsels closing address invited the
    jurors not to rely on Pangs evidence unless it was confirmed by evidence from
    another source.  Mr. Wilkinson submits that the omission, to which objection
    was taken at trial, is fatal to the validity of the appellants conviction.

[44]

For
    the respondent, Ms. Magotiaux begins with a reminder that there is no sacred
    formula that a trial judge must follow to instruct jurors on the legal
    principles that govern the defence advanced, or to relate the evidence to the
    issues the jury are required to decide. The trial judge is best placed to
    determine what is required and how best to express it.

[45]

Ms.
    Magotiaux submits that there is no requirement that the
W. (D.)
formula be slavishly followed in connection with every aspect of the evidence
    an accused says supports the position of the defence. All that is required is a
    clear articulation of the burden on the Crown, the standard of proof to be met,
    and the injunction against simply choosing sides.

[46]

Ms.
    Magotiaux says that, in this case, there were no juxtaposed versions of events
    that invited an either/or choice, or any single piece of evidence that could
    be isolated for a
W. (D.)
instruction beyond the appellants denial.
    The instructions here included a statement of the defence position, as it was
    drafted by trial counsel, that emphasized that the evidence of Pang and
    Carpentier in combination meant that the appellant could not have killed the
    deceased.  Further, in his re-charge, the trial judge directly linked Pangs
    failure to identify the appellant to reasonable doubt. As a whole, the charge,
    which included several
W. (D.)
instructions, was fair, balanced, and
    left no doubt about who bore the burden of proof and what was required to
    satisfy it.

The Governing Principles

[47]

Several
    basic principles inform our decision on this ground of appeal.

[48]

First,
    we are to take a functional approach in our review of the instructions that were
    given, not an idealized approach to those instructions that might have been
    given:
R. v. Jacquard
, [1997] 1 S.C.R. 314, at para. 32;
R. v.
    Cooper
, [1993] 1 S.C.R. 146, at pp. 163-164. We test the instructions
    against their ability to fulfill the purposes for which they are given, and not
    by reference to their adherence to or departure from some specific approach or
    formula:
R. v. MacKinnon
(1999), 132 C.C.C. (3d) 545 (Ont. C.A.), at
    para. 27.

[49]

Second,
    the suggested instruction in
W. (D.)
is not a sacrosanct or sacred
    formula as the decision itself points out:
R. v. W. (D.)
, [1991] 1
    S.C.R. 742, at p. 758;
R. v. Van
, 2009 SCC 22, [2009] 1 S.C.R.
    716, at paras. 20 and 23;
R. v. Simon
, 2010 ONCA 754, 104 O.R. (3d)
    340, at paras. 82-84. Failure to parrot the precise language of the
W. (D.)
formula is not fatal, provided the charge, read as a whole, makes it clear that
    the jury could not have laboured under any misapprehension about the placement
    of the controlling burden, and the substance of the standard of proof that
    governed their deliberations:
W. (D.)
, at p. 758;
Simon
,
    at para. 82.

[50]

Third,
    the
W. (D
.
)
instruction, or its functional equivalent, is not
    limited to an accuseds testimony or statement admitted at trial, rather it
    extends to other exculpatory evidence that emerges during trial proceedings:
R.
    v. B.D.
, 2011 ONCA 51, 266 C.C.C. (3d) 197, at paras. 113-114.

[51]

Fourth,
    the purpose of the
W. (D.)
instruction or its functional equivalent is
    to ensure that the jury understands how to apply the burden of proof to the
    issue of credibility. The jury must be cautioned that a trial is
not
a
    contest of credibility between witnesses, a matter of choosing sides as it
    were, and that the jurors do not have to accept the defence evidence in full to
    find the accused not guilty:
Van
, at para. 23;
W. (D.)
, at p.
    757; and
R. v. J.H.S
., 2008 SCC 30, [2008] 2 S.C.R. 152, at para. 9.

[52]

Fifth,
    a trial judge is not required to relate his or her reasonable doubt instruction
    to specific items of evidence, whether consistent with the defence or the
    Crowns theory of the case:
R. v. M.R
. (2005), 195 C.C.C. (3d) 26
    (Ont. C.A.), at paras. 45-46.

[53]

Finally,
    the failure to expressly relate a
W. (D.)
or equivalent instruction to
    a particular item of evidence is not fatal, provided that the charge, taken as
    a whole, makes it clear to the jury that they are to apply the presumption of
    innocence and the burden of proof to
all
the evidence adduced at
    trial:
Van
, at paras. 22-23;
B.D
., at para. 120; and
R.
    v. Lifchus
, [1997] 3 S.C.R. 320, at para. 40.

The Principles Applied

[54]

I
    would not give effect to this ground of appeal.

[55]

Taking
    a functional approach to the instructions that were given, rather than an
    idealized approach to instructions that might have been given, and reading the
    instructions as a whole, I am satisfied that the jury was properly instructed
    on the position of the defence and evidence relevant to and supportive of that
    position, including the evidence that Pang didnt pick out the appellants
    photo as the chicken seller. The failure to specifically refer to this evidence
    in connection with the
W. (D.)
instruction does not amount to
    reversible error when account is taken of the charge as a whole.

[56]

The
    appellants complaint is one involving non-direction, an omission or failure to
    include within a
W. (D.)
instruction reference to evidence said to be
    supportive of the appellants defence, a denial of participation. The complaint
    fails for several reasons.

[57]

First,
    a trial judge is not required to give a
W. (D
.
)
instruction,
    or its functional equivalent, in connection with every aspect of the evidence
    adduced at trial upon which an accused relies:
Simon
, at paras. 82-84,
    and 89-90;
B.D
., at para. 114,
M.R
.; at para. 46; and
R. v.
    Chenier
(2006), 205 C.C.C. (3d) 333 (Ont. C.A.), at paras. 374-375.

[58]

Second,
    as
Van
explains, the failure to include within a
W. (D
.
)
instruction a specific item of evidence does not always amount to reversible
    error:
Van
, at para. 22. The purpose of a
W. (D
.
)
instruction is to ensure that the jury understands how to apply the burden of
    proof to the issue of credibility. The jury must appreciate that a criminal
    trial is not a contest of credibility between or among witnesses. They must
    also understand that they do not have to accept the defence evidence in order
    to acquit:
Van
, at para. 23. Provided the instruction as a whole makes
    these principles clear, the jury has been properly instructed.

[59]

In
    this case, the instructions on reasonable doubt were compliant with
Lifchus
on the standard of proof. The directions explained that a reasonable doubt
    could arise because of a lack of evidence. The jury was told several times
    that, because the Crowns case was based entirely on circumstantial evidence,
    they could find the appellant guilty only if they were satisfied beyond a
    reasonable doubt that the appellants guilt was the only reasonable inference
    to be drawn from the proven facts. The
W. (D
.
)
instruction in
    association with the appellants statement was repeated several times. Any
    deficiency that there may have been because of the trial judges failure to
    expressly include Pangs failure to identify the appellant in the
W. (D
.
)
portion of the charge was more than compensated for by the balance of the
    charge.

[60]

Third,
    the trial judge made specific reference to Pangs evidence when reviewing the
    position of the defence.  He told the jury:

And even more importantly, Mark Pang did not identify Paul Cyr
    as the person whom he purchased the chicken from. Although he was sure he would
    be able to identify the person again from a photograph, when presented with the
    same line-up that Donald Carpentier was presented with, he did not identify
    Paul Cyr. This is direct evidence that Paul Cyr is not Donald Woods killer.
    This evidence is sufficient, on its own to raise more than a reasonable doubt
    about Paul Cyrs guilt.

He reiterated this reference to Pangs failure to
    identify the appellant in a re-charge and linked it to the balance of the
    evidence and the standard of proof required to establish guilt.

[61]

It
    is also worth reminder that Pangs failure to identify the appellant as the
    chicken seller cannot be isolated from the formidable case that linked the
    appellant to Pangs business, Tai Wah Trade, including nearly two dozen
    telephone calls from the appellants cell phone to the business,
    contemporaneous with the delivery of an amount of chicken consistent with that
    carried in Woods truck. The calls were all routed through a cell tower near
    the Tai Wah Trade business premises.

[62]

This
    ground of appeal fails.

Ground #2: Failure to Distinguish Between Rejection and Fabrication
    of Exculpatory Evidence

[63]

The
    second ground of appeal relating to the charge to the jury also relates to what
    the appellant advances as a fatal omission from the charge to the jury: the
    failure to distinguish the difference in evidentiary value between rejection of
    the appellants exculpatory statement and a finding that the statement was
    fabricated.

The Essential Background

[64]

The
    appellant did not testify at trial.  A CD of an audio-taped interview of the
    appellant on July 12, 2006 by officers of Durham Regional Police Service was
    entered as an exhibit at trial. The appellant denied meeting Donald Woods on
    July 21, 2006. He told investigators that he did not kill Woods and didnt know
    who had killed him.

[65]

At
    trial, Crown counsel had used the audio-taped interview as part of the Crowns
    case and attempted to demonstrate by other evidence that the appellant had
    fabricated several of his responses to police questions.

The Jury Instructions

[66]

The
    trial judge instructed the jury on evidence of post-offence conduct by the
    appellant, including what the Crown alleged were falsehoods and fabrications in
    the audio-taped interview.

[67]

In
    his charge, the trial judge itemized the fabrications alleged by Crown counsel,
    described the defence position in response, gave a
W. (D
.
)
instruction in relation to the appellants denial of responsibility, and told
    the jury that, before finding the appellant guilty on the circumstantial
    evidence adduced by the Crown, the jury had to be satisfied beyond a reasonable
    doubt that the appellants guilt was the only reasonable inference to be drawn
    from the proven facts.

[68]

The
    judge explained the difference between disbelief and fabrication of a statement
    in these terms:

There is a big difference between disbelief of a version of
    events and fabrication of the same version of events.  Disbelief of a version
    of events does not mean that the version of events was fabricated, not at all.
    Evidence that leads you only to disbelieve a version of events is not
    independent evidence that the version of events was fabricated.

Mere disbelief of a statement that Paul Cyr was someplace when
    the offences were committed means that you treat the evidence as if it had
    never been given.  In other words, ignore it and consider the rest of the
    evidence in deciding this case.

However, if you are satisfied on the basis of independent
    evidence that this statement is not just false but was actually fabricated by
    Paul Cyr, then you must next consider the reason why Paul Cyr fabricated the
    evidence.

[69]

The
    trial judge summarized the independent evidence relied upon to establish
    fabrication and concluded his charge on post-offence conduct in these words:

If you find that Paul Cyr fabricated, in other words, made up
    this version of events because he was aware that he did what is alleged, you
    must take that finding into account, along with the rest of the evidence, in
    deciding whether the Crown counsel has proven the guilt of Paul Cyr beyond a
    reasonable doubt.

On the other hand, if you do not or are unable to find that
    Paul Cyr fabricated this version of events because he was aware that he did
    what is alleged, you are not entitled to use this evidence in the way I have
    described and you must decide the case without its assistance.

If you find that Paul Cyr fabricated this version of events
    because he was aware that he did what was alleged and as I stated, you must
    take that finding into account, along with the rest of the evidence, in
    deciding whether Crown counsel has proven the guilt of Paul Cyr beyond a
    reasonable doubt. However, this evidence will not assist you in determining
    whether Paul Cyr committed first degree murder or second degree murder.

The Arguments on Appeal

[70]

For
    the appellant, Mr. Wilkinson begins with the incontrovertible proposition that
    there is a significant disparity in evidentiary value between an exculpatory
    statement that is disbelieved and one that is proven false, in other words,
    shown to be fabricated. Disbelieved evidence has no evidentiary value. 
    Fabricated evidence may constitute circumstantial evidence of guilt.

[71]

Mr.
    Wilkinson says that the error here was that the trial judge muddled the
    distinction between disbelieved and fabricated evidence. The trial judge failed
    to adequately explain the meaning of independent evidence of fabrication as
    requiring something beyond mere disbelief of the statement itself. The judge
    erred further, according to Mr. Wilkinson, in telling the jury that they could
    infer fabrication from the content of the statement and the circumstances in
    which it was given. In the end, the jury might have felt entitled to use their
    disbelief of this statement as evidence of the appellants guilt.

[72]

For
    the respondent, Ms. Magotiaux points out that the trial judge repeatedly told
    the jury that they could not leap from disbelief of the appellants denials to
    an inference or finding of guilt. The trial judge explained that the jurors
    needed to find independent evidence of fabrication before they could make the
    findings necessary for any use of the evidence in determining guilt. The judge
    explained that independent evidence included, but was not limited to, the
    contents of the statement and the circumstances in which it was made.

[73]

Ms.
    Magotiaux says that the danger inherent in a charge that fails to distinguish
    between disbelief and fabrication is the risk that a conviction may be grounded
    on mere disbelief of an accuseds exculpatory statement. But there was no such
    risk here. The distinction between disbelief and fabrication was explained. The
    jury was told that they could not find guilt on the basis of disbelief, rather
    needed to find fabrication due to a particular state of mind before this
    evidence could be used as an item of evidence in deciding whether the appellant
    killed the deceased, although not in determining the legal character of his
    crime.

The Governing Principles

[74]

The
    parties do not differ significantly on the governing principles although they
    part company on the result of the application of those principles in this case.

[75]

The
    distinction between disbelief and fabrication originated in cases in which the
    defence advanced was alibi. Those authorities made it clear that, although a
    disbelieved alibi is of no evidentiary value, a fabricated alibi can constitute
    evidence from which an inference of guilt may be drawn:
R. v. Hibbert
,
    2002 SCC 39, [2002] 2 S.C.R. 445, at paras.
57-58;
R. v.
    Coutts
(1998), 126 C.C.C. (3d) 545 (Ont. C.A.), at paras.
15-16;
    and
R. v. OConnor
(2002), 62 O.R. (3d) 263 (C.A.), at para. 17.

[76]

The
    same rule applies to other exculpatory statements:
OConnor
, at para. 18.
    In non-alibi cases, it is necessary to have regard to the content of what it is
    that is disbelieved and the connection of the disbelieved statement to the
    offence charged:
OConnor
, at para. 18.

[77]

The
    purpose of the distinction between disbelief and fabrication is to reduce the
    risk that the trier of fact, if left unschooled, may blur the need for the
    Crown to prove the offence charged beyond a reasonable doubt with the failure
    of the accused to provide a credible defence. Further, the distinction takes
    into account the danger that the trier of fact may attach undue weight to their
    rejection of the accuseds explanation, and move too readily from mere
    disbelief to a finding of guilt:
OConnor
, at para. 19;
Coutts
,
    at para. 15.

[78]

Disbelief
    cannot form the basis upon which to infer fabrication. A finding of fabrication
    must be founded on evidence that is independent from the evidence that
    contradicts or discredits the accuseds version of events:
OConnor
,
    at para. 21;
Coutts
, at paras. 15-16.

[79]

A
    trier of fact may consider the circumstances in which an accused made an
    out-of-court statement that is disbelieved as independent evidence to show that
    the accused fabricated that statement:
OConnor
, at para. 24. The
    circumstances in which a false statement has been made may show an accuseds
    intent to mislead the police, or to deflect suspicion, and thus be evidence of
    a conscious knowledge that she or he has committed an offence:
OConnor
,
    at para. 26. If the circumstances in which the statement was made tend to
    support this conclusion of consciousness, then those circumstances may be used
    as independent evidence of fabrication:
OConnor
, at para. 26.

The Principles Applied

[80]

For
    reasons I will explain, I would reject this ground of appeal.

[81]

First,
    the trial judge did distinguish between disbelief and fabrication in connection
    with the appellants out-of-court statement in which he denied participation in
    and knowledge of the killing of Donald Woods. The instructions made it clear
    that disbelief of this statement was
not
a piece of evidence that the
    jury could consider in determining whether the Crown had proven the guilt of
    the appellant beyond a reasonable doubt. Said in a different way, the
    instruction not only explained the distinction between disbelief and
    fabrication, but also expressly enjoined the jury from the prohibited chain of
    reasoning from disbelief to guilt. On these instructions, there was no danger
    that the jurors would convert their disbelief of the exculpatory statement into
    proof of the opposite conclusion: participation in the offence.

[82]

Second,
    the instructions on fabrication made it clear that what was required was
    independent evidence of the falsity of the statement and its
actual
fabrication. The trial judge emphasized that findings of actual fabrication,
    and of fabrication due to awareness of involvement in the offence, were
    essential before the jury could rely on the evidence that the statement had
    been fabricated, together with the rest of the evidence, in deciding the case.
    Absent these preliminary findings, the jury was instructed that they could not
    use this evidence in deciding whether the Crown had proven the appellants
    guilt beyond a reasonable doubt.

[83]

Third,
    the circumstances in which the appellant made this statement to police were
    capable of sustaining a finding of fabrication and the instructions of the
    trial judge faithfully recounted the appellants position that no such finding
    should be made.

[84]

Fourth,
    although not fatal, experienced trial counsel for the appellant raised no
    objection to the trial judges charge on this issue.

Ground #3: The Admissibility of the Cell Phone Propagation
    Maps

[85]

The
    appellant challenges the ruling of the trial judge that permitted Crown counsel
    at trial to introduce cell phone propagation maps in evidence through the
    testimony of a radio-frequency engineer employed by Bell Mobility, John Yeh. To
    frame the discussion of this asserted error, it is helpful to recall the nature
    of the evidence admitted and the reasons given by the trial judge for admitting
    it.

The Evidence

[86]

As
    I have indicated, cell phone propagation maps depict the relative coverage
    areas of cell phone towers located at various places in a geographical area.
    The maps entered as exhibits show cell phone tower locations activated by the
    cell phone owned by the appellant at the material time.

[87]

When
    a call is made from a cell phone, the signals bounce off a cell phone tower
    that is activated by the cell phone. The signal is then transmitted ultimately
    to the intended recipients phone. As a general, but not invariable rule, the
    signal from the sending cell phone bounces off the tower closest to the party
    who makes the call. Sometimes, various factors may intercede, such as
    environmental variables, a large volume of cellular traffic, and large
    vehicles, with the result that the callers signal will be directed to and
    received by a tower other than the tower closest to the caller.

[88]

Cell
    phone propagation maps do
not
establish precise locations from which
    calls have been made, only the general area from which the call originated. The
    maps are not 100 percent accurate, rather guesstimates place their accuracy
    at between 60 and 80 percent, or possibly even lower. Said in another way, the
    rate of error maybe 40 percent or more.

The Ruling

[89]

At
    trial, counsel for the appellant acknowledged the logical relevance of the cell
    propagation map evidence and the expertise of Mr. Yeh to give the evidence, but
    challenged the legal relevance of the evidence, in particular, the predominance
    of its prejudicial effect over its minimal probative value.

[90]

The
    trial judge considered that this evidence was expert evidence and applied the
    principles of
R. v. Mohan
, [1994] 2 S.C.R. 9, to determine its
    admissibility. After making reference to several factors discussed in
R. v.
    Melaragni
(1992), 73 C.C.C. (3d) 348 (Ont. Ct. G.D.),  the trial judge
    concluded:

All of the records and data upon which the Crown relies is
    available to the defence and has been disclosed as part of the disclosure
    process.

Therefore, I find that the general nature of the science
    underlying the functioning of the cell phone and the cell phone network and the
    generation of prediction maps are matters of sufficient reliability to be left
    to the jury. I am satisfied that the proposed evidence meets the criteria for
    admissibility in
Mohan
. The evidence is relevant, necessary and
    offered by a witness sufficiently qualified to be considered an expert and
    there is no rule that would require its exclusion.

Moreover, I find that there is no prejudice to be occasioned by
    the evidence. However, if I am wrong on this last point, then I find that
    whatever prejudice there may be is outweighed by the probative value of the
    evidence. Therefore, I rule that this evidence is admissible.


The Arguments on Appeal

[91]

For
    the appellant, Ms. Chiodo begins by acknowledging the logical relevance and
    materiality of this evidence, which she says is expert opinion evidence, thus
    is subject to the requirements of
Mohan
and its refinement by
R.
    v. Abbey
, 2009 ONCA 624, 97 O.R. (3d) 330, in particular, the application
    of the cost-benefit analysis to determine its legal relevance.

[92]

Ms.
    Chiodo says that the trial judge erred in his cost-benefit analysis. He
    misapprehended the probative value of the evidence by overstating the accuracy
    of the propagation maps and understated its prejudicial effect, a result of its
    unreliability. He also failed to factor into his cost-benefit analysis the
    likelihood that jurors would assign disproportionate weight to the evidence
    because of its expert origins.

[93]

For
    the respondent, Ms. Magotiaux submits that the trial judge properly applied the
    cost-benefit analysis to conclude that the probative value of the evidence,
    which was evidence of fact, not expert evidence of opinion, overshadowed its
    prejudicial effect. The trial judge did not misapprehend the accuracy of the
    proposed evidence, rather he expressly adverted to the error rate in his
    analysis. His decision, balancing the relative factors, involves the exercise
    of judicial discretion and is subject to substantial deference on appeal.

[94]

Ms.
    Magotiaux says that no moral or reasoning prejudice is associated with this
    evidence, unlike, for example, with evidence of extrinsic misconduct or
    uncharged similar acts. Further, she contends, in considering the prejudicial
    effect of evidence tendered for admission, a trial judge should take into
    account the efficacy of limiting instructions to confine the evidence to its
    legitimate use as probative material.

The Governing Principles

[95]

The
    admissibility of the cell propagation maps proposed for admission by Crown
    counsel at trial involves the application of general principles about which
    there is little controversy.

[96]

Evidence
    that is relevant, material, and not barred by any specific admissibility rule
    may be excluded under the general exclusionary discretion for which
Mohan
provides:
Mohan
, at pp. 20-21. This cost-benefit analysis determines
    whether the value of the evidence to the correct disposal of the litigation is worth
    the cost of its introduction to the litigation process:
Mohan
, at pp. 20-21.

[97]

Evidence
    may be excluded under this cost-benefit analysis if its probative value is
    overborne by its prejudicial effect, if it involves an inordinate amount of
    time to present the evidence that is not commensurate with its value, or if it
    is misleading in that its effect on the trier of fact is out of proportion to
    its reliability as probative material:
Mohan
, at p. 21. The
    reliability/effect balance is of particular importance where the evidence under
    consideration is expert opinion evidence:
Mohan
, at p. 21.

[98]

Any
    assessment of the potential benefit to the trial process to be gained by the
    introduction of the proposed evidence of necessity involves an intrusion into
    territory that is the traditional preserve of the jury in a criminal jury
    trial. The trial judge must be scrupulous to ensure that she or he decides only
    whether the evidence is worthy of jury consideration, not whether the jury
    should accept and act upon the evidence:
Abbey
, at para. 89.

[99]

Assessment
    of the prejudicial effect of admitting evidence must also acknowledge the
    reality of cautions and limiting instructions about the use of evidence
    received for a limited purpose. Absent alteration of the paradigm of trial by
    jury, we presume such instructions will be followed by jurors, and evidence of
    limited admissibility confined within its proper bounds:
R. v. Corbett
,
    [1988] 1 S.C.R. 670, at pp. 692-693.

[100]

Evidence that a
    call from a cell phone is likely to register at the tower closest to the caller
    is evidence of fact, not of opinion:
R. v. Hamilton
, 2011 ONCA 399,
    271 C.C.C. (3d) 208, at paras. 259, 277, and 279. This evidence is subject to
    limitations: it does not disclose the exact or precise location of a caller,
    only the general area from which the call originated. More precise evidence may
    require expert opinion:
Hamilton
, at para. 280;
R. v. Ranger
,
    2010 ONCA 759, [2010] O.J. No. 4840, at para. 17.

The Principles Applied

[101]

This ground of
    appeal fails for several reasons.

[102]

First, the trial
    judge did not misapprehend the evidence, rather he specifically acknowledged
    and adverted to its reliability being less than 60 percent.

[103]

Second, the
    trial judge was determining the admissibility of evidence, or more accurately,
    where the balance between probative value and prejudicial effect settled, in
    the circumstances of this case. In the absence of a demonstrated error in
    principle, the trial judges determination of where the balance settles is
    entitled to substantial deference on appeal:
R. v. B. (C.R.)
, [1990] 1
    S.C.R. 717, at p. 733.

[104]

Third, the
    appellant has not identified any error of principle in the trial judges cost-benefit
    analysis. The evidence was not time-consuming. It did not  engender moral
    prejudice. It could prompt no emotional reaction on introduction.  It depicted
    no morally repugnant act. It created no reasoning prejudice, either by
    distracting jurors from their consideration and determination of the central
    issues in the trial, or, by itself, creating a profusion of issues with distractive
    potential.

[105]

This evidence
    was not presented to the jury as anything other than what it was: an item of
    circumstantial evidence that the jury could consider in deciding whether Crown
    counsel had proven beyond a reasonable doubt that the appellant killed Donald
    Woods.

Ground #4: The Admissibility of the Evidence of Test Calls

[106]

The final ground
    of appeal also relates to the admissibility of evidence about cell phone calls,
    in particular, about the towers involved in transmitting calls made from a cell
    phone at various locations disclosed by the evidence adduced at trial.

The Essentials of the Evidence

[107]

P.C. James
    Doucette of the Durham Regional Police Service made several calls from a cell
    phone at times and from places that coincided with various events disclosed by
    the evidence adduced at trial. The purpose of this re-enactment was to
    demonstrate that the cell phone records already admitted in evidence, which
    showed the cell tower activated in calls involving the appellants cell phone,
    were consistent with the test results.

[108]

The test calls
    could not duplicate everything about the original calls.  Although the test
    calls were made from the same locations, at the same time of day, and over the
    same network as the original calls, they could not replicate the date, the
    amount of cell phone traffic, or any ambient environmental factors associated
    with the originals.

The Ruling of the Trial Judge

[109]

The trial judge
    acknowledged the discrepancies between the circumstances of the test calls and
    those of the original calls, but admitted the evidence of the test calls. The
    trial judge considered that the evidence was relevant, material and did not
    offend any exclusionary rule of the law of evidence.

[110]

The trial judge
    assessed the probative value of the evidence, as well as its prejudicial
    effect, and decided that the balance favoured admissibility, coupled with a
    comprehensive and scrupulous jury instruction to ensure that the jurors did
    not extend their use of the evidence beyond permitted limits.

The Arguments on Appeal

[111]

For the
    appellant, Ms. Chiodo reinvigorates the argument advanced at trial against
    admissibility. She submits that the trial judge erred in finding that the test
    calls sufficiently replicated the originals to make the test results probative
    on the issue of identity, the critical issue at trial. Further, the trial judge
    proceeded from a presumption of admissibility, she says, rather than
    determining admissibility based on balancing of the probative value of the
    proposed evidence against its prejudicial effect.

[112]

Ms. Chiodo
    submits that the trial judge erred in his assessment of the prejudicial effect
    of the proposed evidence by measuring prejudicial effect, not as an inherent
    quality of the evidence, but rather as attenuated by limiting instructions. In
    the result, Ms. Chiodo argues, the trial judge failed to fulfill his gatekeeper
    function in connection with this evidence and erred in admitting it.

[113]

For the
    respondent, Ms. Magotiaux says that this evidence was evidence of observed
    facts, not expert evidence subject to the rigours of
Mohan
. The
    evidence was relevant, material, and contravened no specific admissibility
    rule, including the discretion that permits exclusion of evidence the probative
    value of which is overborne by its prejudicial effect.

[114]

Ms. Magotiaux
    contends that the trial judge accurately gauged the probative value of this
    evidence. He recognized its limitations and appreciated that it was simply an
    item of circumstantial evidence, to be considered along with the rest of the
    evidence, in determining whether the Crown had proven beyond a reasonable doubt
    that the appellant killed Donald Woods. Further, Ms. Magotiaux says, the trial
    judge properly considered the impact of limiting instructions when assessing
    the prejudicial effect of the evidence. Antidotes to prejudice are properly
    considered in assessing the prejudicial potential of evidence tendered for
    admission.

The Governing Principles

[115]

Several
    principles of general application and others relating to the admissibility of experiment
    evidence inform the decision in connection with this ground of appeal.

[116]

To begin with
    first principles, a witness testimony about observed facts must be relevant
    and material. Satisfaction of these requirements will result in reception of
    the evidence unless its exclusion is justified on some other ground:
R. v.
    Collins
(2001), 160 C.C.C. (3d) 85 (Ont. C.A.), at para. 18. Relevant and
    material evidence may be excluded by the operation of a specific evidentiary
    rule, like the rule against hearsay, the opinion rule, and the rule against
    similar acts and extrinsic misconduct:
Collins
, at para. 19.

[117]

Second, apart
    from these specific admissibility rules that are exclusionary, evidence that is
    otherwise relevant, material and compliant with these specific evidentiary
    rules, may be excluded in the exercise of the trial judges general exclusionary
    discretion to safeguard the fairness of the trial:
Collins
, at para.
    19.  The exercise of this discretion involves a cost-benefit analysis to
    determine whether the cost to the litigation process of receiving the evidence exceeds
    the benefit to be gained in the correct disposal of the litigation:
Collins
,
    at para. 19;
Mohan
, at p. 21.

[118]

Third, the law
    of evidence distinguishes fact from opinion. Generally, witnesses testify only
    about observed facts. The trier of fact draws inferences from those facts. An
    opinion is an inference from observed facts. Lay witnesses can give opinion
    evidence only on issues that do not require special knowledge and where it is
    virtually impossible to separate the facts from the inferences based on those
    facts:
Collins
, at para. 17.

[119]

Fourth, experiment
    evidence that is relevant and material is generally received in criminal
    trials. No specific admissibility rule excludes it, but it, like other
    evidence, is subject to the general exclusionary discretion of the trial judge
    described earlier:
Collins
, at para. 21. Where the evidence requires
    inferences from observed facts that require special knowledge, the specific
    exclusionary rule about opinion evidence is engaged and the requirements of
Mohan
must be met.

[120]

Further, in most
    cases, the relevance of the experiment evidence depends upon the degree of
    consonance between the replication and the original event:
Collins
, at
    para. 22;
R. v. Nikitin
(2003)
,
    176 C.C.C. (3d) 225 (Ont. C.A.), at para. 14.

[121]

Finally, where experiment
    evidence has been admitted in a criminal jury trial, the trial judge should
    provide a comprehensive instruction to the jury about the limitations on their use
    of this evidence and the factors identified by the defence that might diminish
    the weight to be assigned to the evidence:
Nikitin
, at para. 15.

The Principles Applied

[122]

For several
    reasons that I will explain, I would not give effect to this ground of appeal.

[123]

First, this
    evidence was relevant, material, and contravened no specific exclusionary rule
    of the law of evidence. Its relevance resided in its tendency to show the
    general location of the caller when a call was made that was routed through a
    specific cell tower. The evidence tended to confirm the cell phone records for
    the appellants cell phone, and his relative location when he made each call.
    His location at various times was a piece of circumstantial evidence, to be
    considered together with the rest of the evidence, on the issue of whether the
    Crown had proven beyond a reasonable doubt that he was the chicken seller, and thus
    the deceaseds killer.

[124]

Second, the
    trial judge considered the degree of similarity between the replication and the
    original event in reaching his conclusion on admissibility. He recognized the
    impossibility of perfect replication, but considered that there were sufficient
    common features, such as time of day, day of the week, location, and service
    provider, to make it worthwhile to receive this evidence. His balancing of
    probative value and prejudicial effect, which was untainted by legal error and
    plainly a conclusion open to him, is entitled to substantial deference in this
    court.

[125]

Third, this
    evidence did not implicate any specific exclusionary rule of the law of
    evidence. It was evidence of fact, not evidence of opinion. It required no
    special knowledge or expertise of the witness who simply made the calls at a
    specific time and place. The opinion rule had no say on the admissibility
    issue.

[126]

Fourth, the test
    calls in this case, did not portray a one-sided account of disputed facts:
R.
    v. Walizadah
, 2007 ONCA 528, 223 C.C.C. (3d) 28, at paras. 50-51. The
    calls confirmed cellular telephone records already in evidence by providing a
    live witness to describe his location when the call was made.

[127]

Fifth, although
    not a factor on the admissibility issue, the record reveals no improper use of
    this evidence by Crown counsel in his closing address and a scrupulously fair
    charge to the jury about its limitations. That said, in determining the
    prejudicial effect of the evidence in the application of the general
    exclusionary discretion, the trial judge was entitled to consider antidotes to
    prejudice available in the trial process, foremost amongst them, properly
    tailored limiting instructions.

[128]

Finally, nothing
    about this evidence engendered any reasoning or moral prejudice.

CONCLUSION

[129]

For these
    reasons, I would dismiss the appeal.

Released: December 27, 2012 (K.M.W.)

David Watt J.A.

I agree. K.M. Weiler J.A.

I agree. Gloria Epstein J.A.


