R. v. Coban

2022 BCSC 884 R. v. Coban

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Coban, 2022 BCSC 884 Date: 20220526 Docket: X078463 Registry: New Westminster Regina v. Aydin Coban Before: The Honourable Madam Justice Devlin Reasons for Judgment - re: Use of Demonstrative Aids in Crown Opening Counsel for the Crown: L.J. Kenworthy M. Daigle Counsel for the Accused: J.J. Saulnier E. Holzman Place and Date of Hearing: New Westminster, B.C. May 16, 2022 Place and Date of Judgment: New Westminster, B.C. May 26, 2022 Introduction [1] On this application, the Crown seeks leave to use demonstrative aids during its opening address before the jury. The Crown wishes to provide the jurors with (1) a summary of the offending aliases, and (2) a list of witnesses, both of which they would retain for the duration of the trial. The Crown also wishes to rely on a PowerPoint presentation during their opening address but does not seek to have a copy provided to the jury. [2] Counsel for Mr. Coban does not object to the jury being provided a summary of the offending aliases, subject to changing the heading "Information Gathering + Luring Accounts" to something more neutral like "Other". They also agree that a list of witnesses should be provided to the jury but submit the current version should be edited to remove the detail under the column titled "Synopsis". Counsel for Mr. Coban is opposed to the Crown relying on the

PowerPoint presentation during their opening address. They submit the contents of the document do not constitute an overview of the Crown's case but rather detail an argument suitable for a closing address. They also submit that portions of the PowerPoint contain material extracted from the report prepared by Mr. Bulmer, the proposed Facebook records expert. The Proposed PowerPoint Presentation [3] The PowerPoint presentation consists of 23 pages containing various excerpts from the messages that the Crown intends to rely on at trial. Pages 1-13 depict the offences alleged, which the Crown has organized into four episodes. Page 1 provides an example of the type of Facebook and Skype messages sent to Ms. Todd during episode one (November to December 2009). Pages 2-3 provide examples of the type of messages sent on Skype, YouTube, and Facebook during episode two (December 2010). Pages 4-5 provide an example of the type of YouTube and Facebook messages sent during episode three (April to May 2011). Pages 6-10 provide examples of the type of messages sent on Facebook, Gmail and Skype during episode four (October to December 2011). Pages 11-13 provide examples of other contact attempts using Skype and Facebook. [4] Pages 14-23 contain the type of identification evidence that will be tendered at trial. Pages 15-17 contain excerpts from various messages between toddtit and

whatsthisman11; toddtit and Alice Mcallister; and whatthisman11 and Kody Maxson. Some portions of these excerpts are underlined for emphasis. [5] Pages 18-21 are examples of how the offending aliases are linked either through a common account, common profile picture, common email address, or a phone number. [6] Page 22 is an example of session data within a Facebook record recorded by Facebook to track account use. Page 23 is session data within Facebook records. I note that pages 22 and 23 appear to be from Mr. Bulmer's expert report. The Proper Scope of a Crown Opening Address [7] The proper scope of a Crown opening was canvassed in R. v. Mallory, 2007 ONCA 46. At para. 338, the Court explained the Crown should use the opening address to introduce the parties, explain the process and provide a general overview of the evidence that the Crown anticipates calling in support of its case. The Crown opening is not an occasion for argument or opinion. The Court stated: Simply put, "the Crown's opening address should be impartial and fair, a brief outline of the evidence that the Crown intends to call": R. v. Griffin at para.

31. At the opening of the trial the rules constraining the Crown "should apply with even more vigour" than at the closing when by then the jurors have heard and seen all about the case: R. v. Griffin at para. 23. [Emphasis added]. [8] Similarly, in R. v. Pickton, 2007 BCSC 61 at para. 4, the Court emphasized: By long-established custom, although not specifically prescribed by statute, the Crown is entitled at the outset of a jury trial to make an opening that sets out a brief summary of the facts upon which it is relying to establish its case, a summary of the evidence it expects to be able to lead, and a statement of how that evidence relates to the accused's alleged guilt. The purpose of the opening is to provide an overview of the Crown's case to the jury so that it may better follow the evidence and understand where the matter is leading. Argument forms no part of it. [Emphasis added]. [9] In R. v. Basi, 2010 BCSC 713 [Basi], then Associate Chief Justice MacKenzie granted leave for the Crown to provide jury binders before its opening address, which included a chart with the names and positions of various individuals. The defence objected to provision of the chart, noting that it was "selective" in its inclusion of certain people and not others and that it was organized "schematically in a manner that supports [the Crown's] theory of the case, as opposed to alphabetically or

in another similarly neutral fashion" (para. 4). MacKenzie A.C.J. considered the decision in R. v. Sandham (2009), [2009] O.J. No. 4517, 2009 CanLII 58982 (ONSC) [Sandham] in which the Court permitted the Crown to provide the jury with a "cast of characters" chart, among other items. MacKenzie A.C.J. concluded that as in Sandham, it was sensible to provide the jury members with binders containing the proposed materials, as "the facts underlying the charges are replete with the names of persons and their corresponding titles and roles in different companies and institutions", and the chart would assist the jury's understanding (para. 10). The Court found there was no prejudice, so long as the jury was instructed that it was their task to find the facts and that their findings may differ from what was in the chart. At para. 9, the Court observed: Particularly in long or complex cases, the trial judge has discretion to permit summaries or aids to be given to juries to assist them in dealing with the evidence reasonably, intelligently and expeditiously: R. v. Bengert (1980), 53 C.C.C. (2d) 481 (B.C.C.A.); R. v. Fimognairi, [1983] B.C.J. No. 576 (C.A.) (QL). I observe, as well, that the Canadian Judicial Council's model jury instructions and Watt's Manual of Criminal Jury Instructions (Toronto: Thomson Carswell, 2005) contemplate that charts and summaries may be given to juries, as

both have model instructions on that topic. [10] Additionally, the Court noted that it would have been permissible for the jurors to simply take notes of the same information if the Crown spoke the contents of the chart slowly, but the demonstrative aid was a faster and more convenient solution: [11] It would be open to the jurors to take notes of the information contained in the chart if the Crown spoke sufficiently slowly during its opening address. However, that would unnecessarily slow the proceedings, and the chart is a convenient way to achieve this same end. [11] Regarding the issue of the reliance on demonstrative aids generally, I found the comments by Justice Fairburn (as she then was) in R. v. Kanagasivam, 2016 ONSC 2250 to be of assistance, although they were not made in the context of a Crown opening address. The Court ruled on the admissibility of PowerPoint slides that were said to summarize the cell phone records of various persons, among other things. Fairburn J. made the following helpful comments about demonstrative aids generally: [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. [12] In an initial ruling, Fairburn J. excluded the slides, finding that they were potentially confusing and misleading, and that they assumed facts that were in dispute. Fairburn J. commented that they also gave a complete roadmap of the Crown case, and "there is a level of unfairness involved in allowing the Crown two closing addresses" (para. 55). [13] The Crown then made a new application for PowerPoint slides that

focused on the cell phone records of individual phones (instead of various phones). These PowerPoints were ruled admissible because the phone evidence was "lengthy, detailed and microscopic in nature"; it was "wholly unnecessary [to] put the jury through this exercise [of piecing together multiple maps and records] when the records could be distilled to them" (paras. 64, 66). The maps were accurate and they would assist the jurors to distill copious records; any concerns about potential misinterpretation could be addressed with a corrective instruction. The probative value outweighed any prejudice. [14] I turn now to my consideration of the Crown's request to use demonstrative aids in their opening address to the jury. Discussion [15] I know from the pre-trial applications in this case that the evidence the Crown intends to rely on consists of a large number of electronic messages from 21 different usernames and accounts, sent to Ms. Todd, her family, friends, and other people on social media using Facebook, Skype, YouTube, and Gmail. Identification is a key issue at trial. The identification evidence is complex and circumstantial. It will require the jury to analyze particular components of Facebook records and various forensic artifacts located on several digital devices. Given the complexity of the evidence, it is critical that the jury be provided aids to assist them in

understanding the evidence "reasonably, intelligently and expeditiously" (Basi, para. 9). [16] As I have already discussed, the one-page summary of aliases can be provided to the jury for their use throughout the trial, subject to amending the heading "Information Gathering + Luring Accounts" to a more neutral heading such as "Other". This document will provide the jury with a convenient reference tool they can refer to throughout the trial. [17] I also agree that the jury can be provided with a witness list, although it must be revised to remove reference to the synopsis of evidence. [18] I turn now to a consideration of the Crown's request to use a PowerPoint during their opening submissions. The information contained on pages 1-13 provides an example of the type of messages sent during the periods identified in the Summary of Aliases document, which will be given to the jury. Given that the Crown could read these excerpts out to the jury during their opening address, I see no basis to prevent them from providing the jury with the visual image of the message (see Basi at para. 11). However, I think a representative sample from each episode would be sufficient, therefore the Crown will have to reduce the number of slides for episode four and the final section, marked "Other Contact Attempts". [19] With respect to pages 14-23, the Crown submits these slides show the jury the

kinds of evidence they will need to consider to determine identification. They say it is important that the jury be provided these examples so they are able to comprehend what the evidence looks like in order to determine whether identification has been established. I agree with counsel for Mr. Coban that these slides appear to go beyond a general overview of the evidence the Crown intends to call; rather, they engage in impermissible argument. I also note that page 23 appears to be a duplicate of the information contained in part two of Mr. Bulmer's expert report, which is subject of a separate application. In my view, these slides viewed collectively contain the type of detail that would be appropriate in a closing submission. This level of detail is not, however, appropriate in an opening address. [20] However, I accept that an opening address should present an overview of the case so that the jury will be able to relate various parts of the evidence they hear to the whole picture the Crown will attempt to present. Therefore, the Crown will be permitted to revise this portion of their PowerPoint presentation to provide the information in a more summary form. Conclusion [21] Subject to the revisions identified, the Crown is permitted to provide the jury with a one page "Summary of Aliases" and a list of witnesses. [22] The Crown is also granted leave to use a PowerPoint presentation during their opening address, subject to the revisions I have identified. A revised version of the PowerPoint presentation should be provided to both counsel for Mr. Coban and the Court prior to the commencement of the trial so that any concerns may be addressed. "Devlin J."