Indexed as:

R. v. Keeshig

Between
Her Majesty the Queen, and
Cory Scott Keeshig and Aaron Joseph Elliot

[1999] O.J. No. 1271
Court File No. 2980/98

Ontario Court of Justice (General Division)
Owen Sound, Ontario
Thompson J.

March 31, 1999.
(20 pp.)

Criminal law - Procedure - Jury, evidence - Videotapes, production and use of transcripts - Use of computer equipment to display evidence.

Ruling on the procedure to be followed for the introduction of transcripts of audio and video recordings and the use of technological devices to display photographs. The accused were charged with first degree murder. Many of the witnesses were interviewed by the police under oath and their statements were recorded. As part of Crown disclosure, counsel for the two accused were given transcripts of the tapes. The Crown had not intended the transcripts to attain the status of wiretap quality transcription. The Crown and defence operated under the assumption that the transcripts were accurate. Five weeks into the trial it became apparent that the transcripts contained serious errors. The Crown also possessed 300 photographs contained on CD-ROM. During the trial, inadvertent projection of the wrong photograph occurred. The defence sought to determine which party had the responsibility to produce corrected transcripts.

HELD: The court gave directions regarding the provision of transcripts and the use of new technologies in court. If the recording was significantly incomprehensible, a transcript was to be prepared. It was the responsibility of the party attempting to introduce the evidence to provide the transcript. If a party wished to use the recording for a non-evidentiary purpose such as cross-examination of a witness on a prior inconsistent statement, the party seeking to use the recording had the responsibility to ensure that the recording was comprehensible and that the transcript was accurate. If the Crown provided transcripts of audio or video recordings, but did not hold them out to be accurate, the onus was on the defence to determine whether the Crown was promoting them as accurate. Where photographs were provided on CD-ROM, a hard copy of the admissible photographs was to be provided in an exhibit album. The use of the CD-ROM in court required prior review by the defence on a computer monitor before the photograph was projected onto a screen. The CD-ROM was not evidence and was not provided to the jury.

Counsel:

J. David Hay, for the Crown.
Brian D. Barrie, for C.S. Keeshig.
David L. Lovell, for A.J. Elliot.

1. THOMPSON J.:- Many of the witnesses to be called in this trial were interviewed by the police under oath and their statements recorded on videotape or by audio recordings. Twenty witnesses gave video statements, recorded in the K.G.B. format. There were follow-up interviews (fourteen) that were audio recordings. Many of these interviews last in excess of one hour.



2. As part of disclosure, counsel for the two accused were given one copy of the videotapes (to share), and two copies of the audiotapes (one each). A couple of months later, the Crown as part of disclosure, provided defence counsel with transcripts of both the video and audiotapes.



3. The Crown represents that, normally the police would not have transcribed the statements. However in this case, at the request of the Crown, the tapes were transcribed for the purpose of assisting the Crown in preparing its case. The Crown represents that the transcripts were not prepared for the purpose of being part of the Crown's presentation of its' evidence. The Crown represents that in preparing the transcripts, it did not intend the transcripts to attain the status of a Part VI transcription (wire-tap quality transcription.)



4. The tapes were transcribed by a number of stenographers who were not specifically trained to produce transcriptions of the accuracy and quality of Part VI transcriptions. A police officer is purported to have proofed the transcripts.



5. Defence counsel advise me that upon receipt of the one copy of the videotapes, they divided the tapes up and began to make notes as to the contents of those tapes. The tapes were initially provided to the defence in the course of disclosure but with the understanding that transcriptions would follow. Defence counsel have been authorized by their clients to divulge that the accused are on Legal Aid and have limited financial means.



6. The transcripts were provided to defence counsel and presented as a typewritten form of the statement of the witness. To be fair to the Crown, it was not advertised or held out that these transcripts were accurate. However, the form of the typewritten pages of transcript is such that counsel familiar with wiretap transcripts would see a similarity with such transcripts. However, wire-tap transcripts are normally accompanied by the will-say statement of the transcriber or proofing officer attesting to the accuracy of the transcripts.



7. Defence counsel did not extensively compare the video and audiotapes against the transcription provided to them by the Crown. As is known, defence counsel are on Legal Aid and are limited to the number of hours of preparation they can spend and expect to get paid for. Consequently they must manage their time carefully to ensure that they efficiently manage their preparation time to best utilize their limited resources in the defence of their clients.



8. Prior to my appointment to the bench, I had two decades plus involvement (as defence counsel and federal prosecutor), with wire-tap evidence. I am acutely aware of the countless hours one can spend interpreting and ensuring the accuracy of transcripts of recorded conversations. In this case, because of the quality of the recordings, an accurate review and comparison of the tapes with the transcripts would consume hundreds of hours. I am advised that during the evening of February 4, 1999, an officer experienced in the transcription of video and audio recordings, spent three hours reviewing four pages of the 95 pages of the original transcript of the witness Ritchie's first video-recorded statement with the recordings themselves. He found that there were three critical areas where the original transcripts were inaccurate.



9. There are 34 audio and video recordings of the sworn statements of various witnesses. I have only had the opportunity of hearing a small portion of one of those tapes - that being a portion of the videotape of Adrian Ritchie's first statement on January 2, 1998.



10. Until February 4, 1999, (five weeks into the trial), the Crown and the defence were operating with the belief that the transcripts were accurate. That assumption became suspect, at best, with the developments during the cross-examination of Adrian Ritchie by Mr. Lovell, counsel for the accused Aaron Elliott.



11. In examination-in-chief, Adrian Ritchie testified that the accused Corey Keeshig looked at the co-accused Aaron Ritchie, and said words to the effect "are we going to do this?" Paraphrasing the subsequent evidence, the two accused shortly thereafter left the residence and assaulted the deceased.



12. The transcript of the videotaped statement of the witness Adrian Ritchie indicated that "Corey looked at me [the witness], and said, "let's go out and do it."



13. Defence counsel Lovell, in cross-examining the witness Ritchie, challenged that witness with this apparent inconsistency. A dispute arose between Crown counsel and defence counsel as to whether the word spoken on the tape was "me" or "him." In the absence of the jury, (who had not heard the tape played before them), the tape was played back on several occasions. I listened to that portion attempting to determine whether the word was "me" or "him." It was difficult to determine what the word was. It was only after court adjourned, and, in the presence of both counsel for the Crown and defence, that it could be determined, after greatly amplifying the tape, that the word was "him" - not "me," as set out in the transcript.



14. The Crown contends that the deceased was killed in a revenge killing because the deceased caused the death of Aaron Elliott's brother. In examination-in-chief, Adrian Ritchie testified that prior to the deceased being assaulted, the accused Elliott stated, "blood for blood."



15. The transcript of the first interview of witness Ritchie states: "it was blood for blood." In cross-examination, defence counsel for the accused Elliott suggested to the witness that the accused, Elliott did not make the statement "blood for blood," but rather it was the witness' interpretation that what was happening was a blood for blood situation. He did so as a result of the transcribed words, "it was blood for blood." The witness reiterated that the statement had been made by the accused Elliott.



16. It should not be lost that these two errors may go directly to the issue of planning and deliberation regarding the first degree murder charges.



17. It has now been ascertained that an accurate transcription of what the witness said in his first statement was: "and he goes blood for blood" which clearly indicates a statement made by the accused as opposed to a perception arrived at by the witness. Defence counsel states that had he been aware of the difference he would not have chosen to cross-examine the witness as he did. I can appreciate his point. Instead of raising questions of the credibility of the witness, that credibility is now bolstered with the discovery of the accurate transcription of what was said by the witness in his statement.



18. Those portions of the recording I have heard and viewed are of poor quality in the auditory department. This is due in part to the equipment used, the facilities in which the interview took place and the linguistic and vocal peculiarities of the witness. The witness is a First Nations person and has certain linguistic traits and mannerisms peculiar to his ethnic background. At times it is difficult to understand what he is saying. It is only after replaying the tape many times and amplifying the volume that one can be certain of what particular words are. Indeed when I heard, in open court, the passage concerning the disputed "me" versus "him," one time I would think I heard "me," the next time "him."



19. Neither the defence nor the Crown can advise me whether the remaining thirty-three tape transcripts are accurate or not. I am advised that the quality of many of these recordings is of equally poor or poorer quality than the one I have heard - because of the equipment, the facilities, slurred words, voices dropping off, speech impediments, tiredness, intoxicants, etc.



20. I am further advised that many of the witnesses gave several statements which are not consistent. Defence counsel intended to explore these apparent inconsistencies (apparent in that they appear in the transcripts given to them), however, now unsure as to the accuracy of the transcripts, they do not know whether to do so or not.



21. The problem is somewhat compounded by the fact that several of the witnesses, both prior to their testimony at the preliminary hearing and at the trial, were given the original purported transcripts of their statements to refresh their memory and to prepare them to testify. Defence counsel are concerned that their evidence has been tainted, whether consciously or sub-consciously, by possibly inaccurate transcripts of their statements. The practice of preparing witnesses using the suspect transcripts has been stopped and witnesses now only see or hear the video or audiotapes.



22. Defence counsel submits that they were misled by the transcriptions of the various recorded witness statements given to them. It is their contention that it is the responsibility of the Crown to ensure that transcripts are accurate. It is not as simple as that.



23. We are now five weeks into trial - a trial that has more than enough interruptions in the actual presentation of evidence to the jury. If the defence is correct, what is the solution? To order the Crown to produce Part VI type of transcripts? That will take one month or more to accomplish.



24. If I hold that the responsibility to determine the accuracy of the transcripts and to produce accurate transcripts is that of the defence, the defence requests an adjournment to permit them to do so - again a delay in excess of one month (more probably much longer).



25. It was generally believed that, with the advent and development of new technologies, many of the past uncertainties of the recording of evidence would be resolved. It was believed that we would now receive an accurate recording of what a person said, how they looked, or what a particular scene represented, absent the frailties of human perceptions or ability to accurately record. That may have been a simplistic presumption. Perceived panacea may create other pitfalls.



26. For years the judiciary has advocated the recording of witness's or accused's statements by means of video or audio recordings. The reasons were obvious - to produce a more reliable record of what exactly the statement was. In the case of video, there was the added benefit of observing the individual as they gave their statement. No longer would the trier have to rely upon a witness recounting their perception of the demeanour of the statement-maker.



27. To the credit of law enforcement agencies, they have to a large degree heeded these calls. The results have, unfortunately, been widely varied. The quality of the recordings vary drastically, depending upon the quality of the recording equipment used, the placement of the recording devices, the quality of the facilities used for the recording and the training of the interviewer and the technician actually doing the recording. While many enforcement agencies have carefully utilized high quality equipment, carefully considered the placement of the equipment and have designed facilities conducive to accurate recording of statements, others have not taken such care, or, because of financial restraints have not had the funds to accomplish the desired results. As a result, recordings vary drastically from the highly defined to the barely comprehensible.



28. A clear, unambiguous and comprehensible recording is required for the proper administration of justice. The old saying "penny-wise, pound-foolish" comes to mind. If the proper facilities, equipment, equipment placement and training are not utilized, the result can be a difficult-to-comprehend recording. The same agency that could not find the resources to address the problem will now be forced to handsomely pay personnel to interpret the poor quality recordings.



29. The benefits of comprehensible recordings are apparent. They will contribute to the early resolution of criminal charges, to a defining of the issues in criminal trials, to efficiency in the conduct of a trial, and to a better ability on the part of the trier to focus on the words spoken or visible demeanour of a witness maker, as opposed to debating what the words or actions of the statement maker were.



30. The old rules relating to the method and manner of the conduct of trials do not necessarily accommodate the technological changes as to how evidence is presented or how the credibility of witnesses is challenged. The court must formulate rules to take into consideration these changes and how they impact on the conduct of a trial. This will be an evolving process.



31. As a result, I have come to certain conclusions of a general nature and of a specific nature to this trial.



32. A prerequisite to the admissibility of video or audio recorded evidence is its comprehensibility. Incomprehensible evidence is of no import or assistance to the trier of fact.



33. The presentation of the recorded evidence will take the form of the recording itself, without the aid of a transcript, if the recording is itself clearly discernible. It is the responsibility of the party seeking to introduce the evidence to ensure that the recording is comprehensible.



34. If the recording itself is significantly incomprehensible or will require the trier of fact to spend considerable time and effort to interpret the recording or to extract information from the recording, then a transcript of the recording must be prepared. Subject to my later comments concerning disclosure and issues arising from R. v. Stinchcombe, it is the responsibility of the party attempting to introduce evidence by means of a recording to provide the trier of fact with a transcript of the recording, if the recording would cause the trier difficulty in understanding its content. Notwithstanding the preparation of a transcript, it should be remembered that it is the recording, not the transcript, which is the evidence. The transcript is only an aid to the trier in understanding the content of the recording.



35. If a party wishes to use a recording for non-evidentiary purposes in the trial, for instance to cross-examine a witness on a prior inconsistent statement, the same rules apply. The party seeking to use the recording must ensure that the recording is comprehensible. If it is not, or if the party has doubts, then that party is responsible for the production of an accurate transcription of the recording. Again this is subject to disclosure issues.
    
    Procedures that were, will be, or should have been followed in this case: Disclosure of evidence, reproductions or recordings.



36. 1. As part of the disclosure procedure, the Crown must provide defence counsel or the self-represented litigant with copies of all recordings of evidence collected. Without being exhaustive, these would include audio recordings, video recordings, photographs, either in hard copy or CD ROM, copies of documents, either in hard copy or CD ROM, etc.
    
    
    
    2. In the case of audio or video recordings, the Crown will not be required, in the first instance, to provide a transcript of the recording.
       
       If, in the course of disclosure, the Crown provides the defence with a transcript of audio or video recordings, but does not specifically hold out those transcripts as being accurate, the onus is on the defence to determine whether the Crown is promoting the transcripts as accurate. Often transcripts which are produced as an aid to Crown counsel for the purpose of trial preparation, are given to defence in the course of disclosure. If the defence does not enquire as to the accuracy of the transcripts, it cannot later claim it was misled. This enquiry should take place well in advance of any pre-trial hearing or pre-trial meetings.
    
    
    
    3. If the Crown provided a reproduction of evidence in a form which defence cannot access (for instance a CD ROM, where the unrepresented litigant is computer illiterate or does not have a computer or appropriate software), and if the Crown is so notified, it is the obligation of the Crown to prove a reproduction of the evidence that the defence can access, or the equipment and knowledge to access the reproduction. Any disputes as to adequate disclosure should be immediately referred to the courts to minimize delays in proceeding to a disposition of the matter.
    
    
    
    4. After disclosure, should the defence have concerns about the comprehensibility of portions of the recordings, they should so advise the Crown. The Crown, upon being so advised, should provide the defence with a transcript of those portions that are difficult to comprehend, with a degree of accuracy equal to that produced for a Part VI transcript (wire-tap transcript). Any dispute as to whether the Crown should produce such a transcript should be immediately referred to the court for a ruling. The forum could be a mini-pretrial hearing. The defence should not interpret the above as giving them the right to demand the wholesale transcription of all recordings, but rather are limited to those portions of the recordings they are unable to comprehend. Should the defence, for tactical reasons, choose not to disclose to the Crown those portions of the recordings they are having difficulty comprehending, it is their responsibility to satisfy themselves, by whatever means and at their own expense, as to what the recordings mean or say.
    
    
    
    5. The defence should be aware that compliance by the Crown with a request for a Part VI type transcript can, depending on the length and number of incomprehensive portions, take a significant amount of time - often months. As a result, the defence must be diligent in making their requests. Leaving such requests to the eve of trial, or making the requests at trial, may well result in a ruling by the court which is not favourable to the defence.
    
    
    
    Introduction of reproductions or recordings at trial.
    A. Use of technological devices and equipment



37. 1. If the Crown or defence intend to use technological devices in the presentation of their case, that fact should be brought to the attention of the trial judge at a pre-trial meeting, sufficiently in advance of the trial itself to ensure that the required equipment is available at the trial. This is essential to ensure that the trial is not delayed. At the pre-trial meeting, the trial judge will rule as to what equipment is to be made available, who will be responsible to provide the equipment and who will be in control of that equipment at the trial.
    
    
    
    2. If the defence do not, for tactical reasons, wish to divulge what technological aids or equipment they require, it will be their responsibility to ensure that the necessary aids or equipment are available and working so as to not delay the court proceedings.
    
    
    
    B. Photographs and technology



38. In this case, the Crown was in possession of approximately 300 photographs of the crime scene, articles of evidence and pathology procedures including the autopsy. These were on CD ROM and were made available in hard copy form. The procedure I would like to see followed is:
    1. Defence counsel, the technician, each crown, the court and the witnesses are to be given a photo album containing all of the hard copy photos. They are to be sequentially numbered.
    
    
    
    2. The photos have been reproduced on CD ROM. The photos on the CD ROM will have numbers corresponding to the numbers on the hard copies.
    
    
    
    3. As not all the photographs in the possession of the Crown will be used, or ruled admissible, a photo album with blank see-through sleeves will be filed with the courtroom registrar and given a lettered exhibit designation for identification. As the various photographs are produced through various witnesses and admitted as evidence, the hard copy of the photograph is to be placed into the lettered exhibit photo album. Once all the photographs have been admitted, the court album will be given an exhibit number and made available to the jury to be reviewed by them during their deliberations.
    
    
    
    4. In this case, the Crown and defence utilized a technology that greatly reduced the time consumed in showing the jury the photographs and permitted the jury to see what a witness was pointing out in a particular photograph. All the photos were put on a CD ROM. They were then displayed to the jury by projecting the individual photo onto a large screen. This was accomplished by using a laptop computer hooked into a projector. To attempt to ensure that the right photograph on the CD ROM was projected onto the screen, and to permit the defence to object to the admissibility of the photograph prior to its being projected onto the screen, the photo was first brought up onto a monitor which the jury could not see. The laptop was operated by a police officer. The defence designated someone to review the photo on the monitor screen. It was only after defence counsel indicated their consent that the photo was projected onto the screen. The witness then used a laser pencil to point out various aspects of the photo. To preserve the record, what he was pointing to was described vive voce.
    
    
    
    5. The CD ROM is not evidence. It will not be provided to the jury. The projection of the photo onto the screen is on only as an aid to the jury, the witness, counsel, and the court. The CD ROM contains reproductions of photos which will not be made evidence or will not be ruled admissible. The real evidence is the hard copy photo placed in the court-filed album.
    
    
    
    6. This procedure, where there are a large number of photographs to be introduced, greatly enhances the ability of the jury to comprehend what a witness' testimony is when he is referring to a photograph. They can all readily see what a witness is pointing to. They can all readily view the photograph at the same time. The time consuming difficulty of passing a photograph, juror by juror, is alleviated.
    
    
    
    7. There are difficulties with this procedure. The technician can, through inadvertence, project the wrong photograph - one that has been ruled inadmissible or was not intended to be introduced as evidence. This can result in the jury seeing inadmissible or improper evidence. This could result in great prejudice to the accused and could conceivably result in a mistrial depending on the degree of prejudice.
    
    
    
    In this trial, inadvertent projection of wrong photographs occurred and, in the one instance, an admissible but graphic photo was projected onto the screen and left there for far too long because counsel were in the midst of argument. It would seem to me that a device should be available to the judge (such as a kill switch), whereby the court could discontinue the projection of the image at the first hint of an objection or if the court felt the wrong photograph was projected or if an image was projected for too long a period. Often, by the time the court orders the projection discontinued and the technician is able to react, the damage has occurred. It would be better if the court, on its own initiative, could terminate the projection.
    C. Use of audio and video recordings at trial



39. The use of audio and video recordings at trial raises a number of issues. A distinction must be drawn between what is and what is not evidence, the use to which transcripts may be put, and whether the recordings are or are not given to the jury to be used during their deliberations.
    1. If a party wishes to introduce a recording as evidence, that recording must be sufficiently comprehensible to be admissible. If it is of such a quality that the recording itself is incomprehensible, it may well be ruled inadmissible as not being capable of being evidence. It is the responsibility of the party intending to introduce the recording, to satisfy themselves that the recording is sufficiently comprehensible that a court will accept the recording itself as evidence.
    
    
    
    2. Subject to disclosure rules, if a party intending to introduce recordings as evidence is not satisfied as to their comprehensibility, it is that party's responsibility to prepare an accurate transcript of the recording.
    
    
    
    3. The same rules will apply no matter what use a party wishes to make of the recording in the course of the trial. That party must ensure the comprehensibility of the recording and, if there are comprehension difficulties, provide an accurate transcript of the recording.
    
    
    
    4. Where a party wishes to refresh the memory of a witness by having that witness review a previous recorded statement, the playing of the recording for the witness will take place either in the absence of the jury or, if the equipment being used is capable of so doing, without the jury being able to hear or see the recorded statement the witness is reviewing.
    
    
    
    5. If a party wishes to contradict a witness with a prior inconsistent recorded statement, only that portion of the recording containing the alleged inconsistency is to be played before the jury. There is no necessity that the jury listen to the entire recording - only those relevant portions.
    
    
    
    6. When a party intends to put an alleged inconsistency in a prior recorded statement to a witness, they should so advise the opposing party prior to playing the tape before the jury. This will permit the opposing party an opportunity to object if there is an issue as to whether there is an inconsistency prior to the jury hearing possible improper evidence.
    
    
    
    7. Where a party intends to suggest to a witness that prior recorded statements do not contain facts the witness is testifying to at trial (i.e. to suggest exaggeration or embellishment of the evidence at trial), prior to the question being put to the witness, he should be directed to review his recorded statement in the absence of the jury. Then, in the presence of the jury, the witness may be examined. It is only in the situation where the witness testifies before the jury that he indeed revealed that fact in the course of his recorded statement, that the recorded statement should be played for the jury for the sole purpose of permitting the jury to assess the witness' credibility.
    
    
    
    8. Prior statements of a witnesses testifying at trial are not evidence unless and until they are adopted by the witness. Juries are advised that those portions of a prior statement that are not adopted, can only be used by them to assess the credibility of the witness.
    
    
    
    9. Where an alleged prior inconsistent statement of a witness has been recorded by video or audio equipment in a discernible manner and has not been adopted by the witness, the jury will not be given a copy of the recorded statement for consideration during their deliberations. The jury will have clearly heard the words spoken on the tape and they can then proceed to determine whether there was an inconsistency and, if so, how it impacts on their assessment of the witness' credibility.
    
    
    
    10. A different approach will have to be taken in the situation where an alleged prior inconsistent recorded statement is difficult to understand and a dispute arises as to what the words spoken were and whether they constitute an inconsistency. Presumably, both parties will have called evidence on the issue and filed their respective transcripts (as per R. v. Rowbotham). In this situation, it is for the jury to determine what the words on the tape are, whether they constitute an inconsistency and, if so, what impact that has on their determination of the credibility of the witness. To do this, the jury must have access, during deliberations, to that portion of the recording that supposedly contains the alleged inconsistency. The jury will not be given the entire recording but only that portion containing the alleged inconsistency. The jury will be clearly cautioned as to the limited use they can make of this recording. It will be the responsibility of the party alleging the inconsistency to provide a copy of just that portion of the recording for use by the jury.
    
    
    

THOMPSON J.

QL Update: 990427
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