R. v. Oland (D.J.), (2015) 446 N.B.R.(2d) 189 (TD)

• Judge: Walsh, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: July 29, 2015
• Jurisdiction: New Brunswick
• Citations: (2015), 446 N.B.R.(2d) 189 (TD);2015 NBQB 244

R. v. Oland (D.J.) (2015), 446 N.B.R.(2d) 189 (TD);

    446 R.N.-B.(2e) 189; 1168 A.P.R. 189

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Temp. Cite: [2016] N.B.R.(2d) TBEd. AP.003

Renvoi temp.: [2016] N.B.R.(2d) TBEd. AP.003

Her Majesty The Queen v. Dennis James Oland

(SJCR-2-2015; 2015 NBQB 244; 2015 NBBR 244)

Indexed As: R. v. Oland (D.J.)

Répertorié: R. v. Oland (D.J.)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Saint John

Walsh, J.

July 29, 2015.

Summary:

Résumé:

The accused was charged with the second degree murder of his father, who was discovered bludgeoned to death in his office. The accused was the last known person to see him alive. The father's cell phone was the only thing missing from the murder scene. The Crown's theory was that the accused took his father's phone when he left his office. At issue on this voir dire was the admissibility of certain cell phone location evidence that the Crown proferred to prove that minutes after the accused left his father's office "pings" off cell phone towers placed both the accused's and father's phones in the same general location (Rothesay) where the accused admittedly went after he left his father's office. The Crown sought admission of the "call detail records" as "business records/electronic documents" under the Canada Evidence Act (ss. 30(3), 31.2 and 31.3)). The Crown also sought to lead expert evidence from two radio frequency engineers (from Rogers and Telus) respecting the coverage areas of certain cellular towers and the likelihood of the two phones actually being in Rothesay (as opposed to the father's phone still being in Saint John) when they "pinged" off the Rothesay cellular towers. This voir dire dealt solely with the proffered expert evidence of the two engineers.

The New Brunswick Court of Queen's Bench, Trial Division, held that the expert evidence as to cell phone location was relevant to the issue of identity. The Telus expert's evidence was inadmissible as it failed to meet the threshold necessity test (accused already admitted to being in Rothesay). Following a costs-benefits analysis, the Rogers expert's evidence was ruled admissible, subject to a number of exceptions and directions.

Criminal Law - Topic 5383

Evidence and witnesses - Documents and reports - Telephone records (incl. text messages) - [See Evidence - Topic 7055.1 ].

Evidence - Topic 7055.1

Opinion evidence - Expert evidence - Particular matters - Cellular phone location - The accused was charged with the second degree murder of his father, who was discovered bludgeoned to death in his office - The accused was the last known person to see him alive - The father's cell phone was the only thing missing from the murder scene - The Crown's theory was that the accused took his father's phone when he left his office - At issue on this voir dire was the admissibility of certain cell phone location evidence that the Crown proferred to prove that minutes after the accused left his father's office "pings" off cell phone towers placed both the accused's and father's phones in the same general location (Rothesay) where the accused admittedly went after he left his father's office - The Crown sought to lead expert evidence from radio frequency engineers from Rogers (father's phone) and Telus (accused's phone) respecting the coverage areas of certain cellular towers and the likelihood of the two phones actually being in Rothesay (as opposed to the father's phone still being in Saint John) when they "pinged" off the Rothesay cellular towers - The New Brunswick Court of Queen's Bench, Trial Division, held that both engineers were qualified experts whose evidence as to cell phone location was relevant to the issue of identity - The Telus expert's evidence was inadmissible as it failed to meet the threshold necessity test (accused already admitted to being in Rothesay) - Following a costs-benefits analysis, the Rogers expert's evidence was ruled admissible, subject to a number of exceptions and directions (see paragraph 97).

Cases Noticed:

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 9].

R. v. Sekhon (A.S.) (2014), 454 N.R. 41; 351 B.C.A.C. 1; 599 W.A.C. 1; 2014 SCC 15, refd to. [para. 9].

Abbott and Haliburton Co. Ltd. et al. v. WBLI Chartered Accountants (2015), 470 N.R. 324; 360 N.S.R.(2d) 1; 1135 A.P.R. 1; 2015 SCC 23, refd to. [para. 11].

R. v. Hamilton (A.) et al. (2011), 279 O.A.C. 199; 2011 ONCA 399, refd to. [para. 13].

R. v. Ranger (J.), [2010] O.A.C. Uned. 644; 2010 ONCA 759, refd to. [para. 14].

R. v. Cyr (P.L.) (2012), 300 O.A.C. 111; 2012 ONCA 919, refd to. [para. 15].

R. v. Korski (C.T.) (2009), 236 Man.R.(2d) 259; 448 W.A.C. 259; 2009 MBCA 37, refd to. [para. 18].

R. v. Abbey (W.N.) (2009), 254 O.A.C. 9; 2009 ONCA 624, refd to. [para. 20].

R. v. D.D., [2000] 2 S.C.R. 275; 259 N.R. 156; 136 O.A.C. 201, refd to. [para. 32].

R. v. Steeves (K.W.) (2011), 379 N.B.R.(2d) 222; 978 A.P.R. 222; 2011 NBCA 88, refd to. [para. 41].

R. v. Edison (T.) (2015), 433 N.B.R.(2d) 267; 1130 A.P.R. 267; 2015 NBQB 74, refd to. [para. 47].

R. v. Lavallee, [1990] 1 S.C.R. 852; 108 N.R. 321; 67 Man.R.(2d) 1, refd to. [para. 61].

R. v. Beland and Phillips, [1987] 2 S.C.R. 398; 79 N.R. 263, refd to. [para. 67].

R. v. Robinson, 2010 ONCJ 576, refd to. [para. 87].

R. v. Calvert (T.), [2011] O.A.C. Uned. 342; 2011 ONCA 379, refd to. [para. 87].

R. v. De Bortolli, 2012 BCSC 1957, refd to. [para. 87].

R. v. Hardenstine (A.R.), [2010] B.C.T.C. Uned. 899; 2010 BCSC 899, refd to. [para. 87].

Counsel:

Avocats:

John Henheffer, Patrick Wilbur and Derek Weaver, for the Crown;

Gary Miller, Q.C., Alan D. Gold and James R. McConnell, for Dennis James Oland.

This matter was heard on June 15, 16 and 23, 2015, before Walsh, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Saint John, who delivered the following judgment on July 29, 2015.