Records capable of being confirmatory evidence

A relatively novel use of cell phone tower evidence was at issue in R v Saleh. Evidence that an accused’s cell phone has pinged a particular cell phone tower is not infrequently used directly as evidence placing that accused in the vicinity of an offence, in order to show guilt. In Saleh, however, the evidence was used more indirectly.

The accused was charged with and convicted of first degree murder. Both the accused and the victim were involved in the drug trade, and the Crown argued that the accused had killed the victim because of a dispute related to that. Important evidence against the accused came from two witnesses also involved in the drug trade, one of whom had also been charged with the same murder but had made a deal in exchange for his testimony. Because these were two “unsavoury witnesses”, the trial judge was required to give the jury a Vetrovec caution about their evidence. That is, the judge was required to instruct the jury that they should show the greatest care and caution before accepting the evidence of those witnesses, unless there was confirmatory evidence of their testimony. That confirmatory evidence had to be independent and had to support or confirm material parts of the witnesses’ testimony.

The accused objected on appeal that the trial judge had wrongly pointed to cell phone tower evidence as capable of being such confirmatory evidence. The location of the shooting was a secluded rural area west of Ottawa, and records relating to cell phone use and cell phone towers placed the co-accused witness and the accused in relevant areas at relevant times. The accused argued that this should not be seen as confirmatory evidence: it was not material in respect of whether he was involved in the killing. Because those records were irrelevant to the question of his role in the killing, he argued, they did not meet the materiality requirement.

The Ontario Court of Appeal found no error in the trial judge’s reference to those records as satisfying the confirmatory purposes of a Vetrovec caution. Confirmatory evidence need not directly implicate the accused: it is sufficient that it be reasonably capable of strengthening the jury’s belief that the witness is telling the truth on an important aspect of the case. In this instance the cell phone and cell tower records confirmed the attendance of the accused and the witness at the remote site contemporaneous with the killing: that made it potentially material confirmatory evidence, and so the trial judge had not erred in pointing to that possible use of the evidence.