But, at the same time, because most of the individuals involved in the trace
did not testify, and because none of the records created by Bell employees or
police were available, you must realize your own disadvantage in assessing
the reliability of the steps taken and the results obtained.
None of this evidence has been tested by cross-examination and the absence
of any opportunity to cross-examine the individuals involved in tracing this
9-1-1 call renders the trace evidence less reliable than would be the case, had
[ 48] Counsel on appeal describes the above-quoted instructions
as a “generic legal warning”. She submits that the jury should
have been pointed to the specific issues in respect of which cross-examination would have been important. For example, had the
witnesses been available, they could have been cross-examined
about whether they followed the various procedures available for
testing the accuracy of a purported trace.
[ 49] I have no doubt that the jury, having heard the evidence
and the arguments and the cautions in respect of the reliability of
the tracing evidence, would fully appreciate the specific areas in
which the defence claimed that cross-examination could have
exposed the unreliability of the tracing evidence. The trial judge’s
obligation to alert the jury to the reliability concerns associated
with the tracing evidence did not go so far as to require him to
provide specific examples of the areas of cross-examination that
may have proved fruitful for the defence. He could have given
that kind of instruction, but his failure to do so does not, in my
view, render the instructions wrong in law or otherwise inadequate or unfair.
B. The other grounds of appeal
( i) The admissibility of the statement “Gate 6, Terry
[ 50] As part of the tracing evidence, the Crown led evidence
that after the police had received certain information from the
Bell personnel concerning the results of their tracing, Edward
Lum, a police cadet, called Dofasco and asked the operator to
connect him with security at Gate 6. A few seconds later, a woman
came on the line and said, “Gate 6, Terry speaking”. She confirmed
that there was a payphone right behind Gate 6. Cadet Lum asked
her to secure the phone until the police arrived.
[ 51] Cadet Lum’s evidence was part and parcel of the tracing
evidence that had been ruled admissible by the Court of Appeal.
The defence, however, argued that the phrase “Gate 6, Terry
speaking” should be excluded from evidence as it may be misconstrued by the jury as evidence that “Terry” was located in the
guard shack immediately beside the payphone. For reasons I need