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Criminal law — Evidence — Expert evidence — Admissibility — Witness statements — Voluntariness — Whether the Court of Appeal erred in holding that the cell phone tower evidence tendered at trial by the Crown was admissible because it constituted factual evidence rather than opinion evidence — Whether the Court of Appeal erred in holding that proof of voluntariness, within the meaning of the confessions rule, is not a condition precedent to the substantive use of an out-of-court statement made to a person in authority.

On July 24, 2001, three gunmen opened fire on a crowd of people. Two people were shot multiple times and died at the scene; another person was shot in the leg as he ran to escape the gunfire. When police discovered that one of the guns used in the murders had been purchased by Clarence Coward, they sought to question him. He made four statements while in custody on other charges. Before his first statement, Coward was offered various inducements. He provided a great deal of information about with the murders and other criminal activities involving Davis and Reid. Prior to the second statement, Coward was reminded of the inducements, and confirmed that he had not been threatened or offered additional inducements off-camera during the first statement, but had spoken to officers off-camera of his own volition, and had prompted them to question him about the other matters. He later asked to make the third statement, which was audio-taped. In it, he recanted his earlier statements, offering a different version of events and his reason for the change. The fourth statement occurred at the preliminary inquiry. He maintained that he bought the gun for the other person, admitted that he knew Reid and Davis, but denied the details of his first statement. During the cross-examinations, he offered a number of explanations for changing his evidence, first saying that he had been coerced by police, but later saying that he had not. The trial judge found that the first and second statements were K.G.B. statements, and, after some negotiation, admitted all four statements for their truth.

The cell phones of Hamilton (Telus), Schloss (Telus) and Davis (Rogers) had registered at cell phone towers in the vicinity of the scene around the time of the shootings. At trial, representatives of the phone companies testified, inter alia, about the rules governing the location of a cell phone in relation to a cell phone tower, the times and towers at which the cell phones of each of the applicants registered, and the extent of the synchronization between the times used by the cell phone carriers and the 911 system. No voir dire was requested and the trial judge allowed the phone company employees to give cell phone tower evidence without first holding one. All four accused were convicted by a jury on all three counts.

After the appeal was argued, Hamilton applied to adduce fresh evidence intended to prove that the 911 system and the Telus system were both synchronized with atomic time, making it impossible for him to be present at the murder scene.

The Court of Appeal dismissed the motion to adduce new evidence and the appeal.