[ 37] The trial judge also distinguished between the technical
and mechanical components of the tracing process and the
human elements in that process in his instructions to the jury.
For example, after referring to Mr. Johnston’s evidence, the trial
You must remember that Mr. Johnston was giving his opinion on the tech-
nical aspects of the operation of the 9-1-1 system in place in Hamilton in June
1981, including the tracing of the origin of this call.
[ 38] The trial judge went on to remind the jury that there were
“a lot of human links in the tracing chain that weren’t before us”,
and that the absence of evidence from those “human links” rendered the evidence “less reliable” than it would have been had
those persons been available.
[ 39] The appellant next argues that the trial judge’s reference
to the many people involved in the tracing of the 911 call who
were not available as witnesses did not properly alert the jury to
the risk of human error in the tracing process. I cannot accept
this argument. I have no doubt the jury would understand that
the witnesses’ absence was significant because it prevented
defence counsel from exploring the possibility of human error
with the people actually involved in the tracing.
[ 40] The appellant also refers to specific parts of the evidence
which he contends the trial judge had to refer to in his instructions and relate to the position of the defence. Counsel referred to
these parts of the evidence in his closing argument. He did not
ask the trial judge to specifically refer to the evidence in his instructions and did not suggest that any of this evidence was
crucial to an understanding of the defence position.
[ 41] The instructions equipped the jury with the ability to
relate the evidence to the issues. They had heard counsel’s submissions about the significance of certain parts of the evidence. It
was for the jury to determine whether those arguments should be
accepted. This was not a case in which the trial judge selectively
referred to evidence relating to the various issues in a way that
could be said to have pointed the jury in a particular direction
and rendered the trial unfair. By and large, the trial judge left it
to the lawyers to argue their respective cases and marshal the
[ 42] I think it is significant, as argued by Crown counsel on
appeal, that the trial judge chose not to connect the reliability of
the tracing evidence to the uncontradicted evidence that the
appellant’s DNA was found in the victim. As observed in
Badgerow #2, the DNA evidence potentially provided powerful
circumstantial evidence of the tracing evidence’s reliability. It will
be recalled that the tracing evidence placed the call as originating