R v Vader, 2016 ABQB 287

Court of Queen ’ s Bench of Alberta Citation: R v Vader, 2016 ABQB 287 Date: 20160607 Docket: 130781800Q1 Registry: Edmonton Between: Her Majesty the Queen Crown (Applicant) - and - Travis Edward Vader Accused (Respondent) _______________________________________________________ Oral ruling on the admissibility of text messages EDITED FOR PUBLICATION BY ADDITION OF HEADINGS AND A TABLE OF CONTENTS of the Honourable Mr. Justice D.R.G. Thomas _______________________________________________________ Table of Contents I. Introduction . 2 II. Position of the Parties . 2 III. Analysis . 3 IV. Conclusion . 6 Trial management exhibit #1 . 7

I. Introduction [ 1 ] The Crown has applied to admit into evidence data having to do with several cell devices associated to a variety of witnesses and to Travis Vader. This proposed Crown evidence is found in a number of exhibits marked for identification and more fully described in a

summary marked as a trial management exhibit #1 at this time (copy attached and forms part of this judgment). [ 2 ] On May 5, 2016, I ruled that much of this data, including text messages associated to the Andrea Sexsmith cell phone (the “1685 phone”) and the “McCann phone” (780-920-6796) was admissible.

In the formal judgment related to that May 5 ruling, I confirm that the data related to all of the other cell phones listed in the exhibits covered by the trial management exhibit, including all associated text messages, are admissible for all purposes subject to a determination of this application for exclusion made by the defence on May 6, 2016 in respect to the admission of the text messages for the truth of their contents.

To summarize, the Crown applies to admit all text messages shown in the various exhibits for identification listed in trial management exhibit #1 for the truth of their contents and the defence resists and argues that the text message content is classic hearsay and the texts are not admissible under any exception to the hearsay rule. [ 3 ] The data includes information concerning: 1. the source telephone and account that sent the text message, 2. the recipient telephone and account that received the text message, 3. the timing of the text message communications, and 4. the text message itself. [ 4 ] The point in dispute is what weight can I place on the information in the text messages themselves and on what basis would I make that evaluation.

II. Position of the Parties [ 5 ] The Crown argues all text message data is admissible pursuant to the Canada Evidence Act , RSC 1985, c C-5, s 30 which makes “a record made in the usual and ordinary course of business” admissible in evidence.

This is a well-established exception to the general rule against admission of hearsay evidence, and means that information contained in records of this kind is prima facie admissible for all purposes: R v Smith , 2011 ABCA 136 , 510 AR 37, leave denied [2011] SCCA No. 314. [ 6 ] The defence takes the position that the text message content information should be excluded as non-admissible because the source of the communication is not “authenticated”. That means: ... At the present stage of this trial, the Crown need not finally establish the identity of the sender.

However, the Crown must at least lead some evidence with respect to this subject, or the texts cannot even be marked on a provisional basis. ... The Crown should only be permitted to admit those text messages with respect to which it has led evidence as to the identity of the sender, and then not for the truth of the contents of the text messages. The identity of the sender would then fall to be determined at the end of the day. [ 7 ] The defence indicates the recent decision of the Supreme Court in R v Seruhungo , 2016 SCC 2 , 479 NR 380, provides this rule.

In that decision, the Supreme Court of Canada adopted without further comment the reasoning of O’Ferrall JA in R v Seruhungo , 2015 ABCA 189 , 600 AR 356, which concluded at paras 69-78 that the trial judge had correctly excluded text message information extracted from phone company records because the text message record data was not accompanied by evidence that linked those records to a particular person. III. Analysis [ 8 ] In my view the parties are essentially arguing for much the same thing, and their divergence is more a matter of semantics than anything else.

Much of this relates to terminology commonly used in litigation, but which sometimes translates awkwardly into some modern contexts. [ 9 ] Charron J in R v Khelawon , 2006 SCC 57 , [2006] 2 SCR 787 defined “hearsay” as: ... An out - of - court statement will be hearsay when: (1) it is adduced to prove the truth of its contents and (2) there is no opportunity for a contemporaneous cross - examination of the declarant. [ 10 ] The Crown argues the text message telecommunication record is admissible under the Canada Evidence Act , s 30 exception.

I agree, particularly in light of the modern and purposive approach to the reliability of documentary evidence described by Germain J in R v MacMullin , 2013 ABQB 741 , 579 AR 205, confirmed in 2015 ABCA 82 . There is no real dispute between the parties that the Telus text message record data is accurate and reliable because of the automated manner in which that data is generated, collected and stored.

[11] What is important, however, is to examine what does “the truth of its contents” mean in this particular context. Here the‘truthful content’ is the documentary record of information concerning when a text message was sent, its source and destinationtelephone, and the text of the message is reliable and admissible.

Looking at a specific example, the Telus text message records establishthat on July 3, 2010, someone sent a message from the McCann phone to the phone then being used by Amber Williams, and that theoperator of the McCann phone had typed a message: I’ve been trying to call you and text you and e-mail you and Facebook you, and I can’t get in touch with you.

It’s me T This is “the truth of its contents”. [12] What the Telus text message evidence, in isolation, does not prove is who was the sender of the message, who was themessage’s intended recipient, who (if anyone) received the message, who is “T”, and whether “T” truly has been trying to call, text,email, and Facebook the intended recipient of the text. [13] In this sense, I agree with the defence position. This evidence is, in isolation, meaningless.

If the Telus text message recorddata is to have probative value then that telecommunications data must be linked to other information such as forensic data on the cellphones, telephone contracts and subscription purchase information, and evidence from persons who physically interacted with thosephones. This second collection of evidence may show who composed and sent a particular message. [14] In R v Serhungo, that kind of information was absent, although who owned the phones in question was acknowledged: para76.

However, no further evidence was called to establish who had sent the disputed text messages: para 76. Justice O’Ferrall concludesat para 77 that the legal issue in play is not “hearsay”: The difficulty with this position, however, is that the question of whether the text messages were actually sent by LL or the victim wasan issue of authentication not hearsay. ...

The Crown still had the duty to prove the messages were authentic, in that they actually passedbetween the shooter and the victim, in order to show that the messages were relevant, but it could do so with other circumstantialevidence without turning the text messages into hearsay. ... [Emphasis added.] [15] O’Ferrall JA continues to confirm that the trial judge was correct to conclude “... the text messages were unreliable becausethe Crown had not proven that the text messages were sent by the people alleged to have made them.”: para 86.

In R v Serhungo, theevidence at trial was that a group of associates used one another’s phones, and that unless some other evidence established a connectionbetween particular messages and their source, “authentication”, then “the messages were not probative and [are] therefore irrelevant.”:para 87.

Justice O’Ferrall ultimately concludes at para 88 that: ... there may be situations where authentication can be proven on the basis of the fact that a message came from a particular phone, butthat will depend on the facts of the individual case. [16] This indicates that the “authentication” question is really simply a part of how a trial judge weighs logically relevant evidence;that “... admissibility will depend upon the probative effect of the evidence balanced against the prejudice caused to the accused by itsadmission ...”: Sweitzer v The Queen, (SCC), [1982] 1 SCR 949 at 953, 137 DLR (3d) 702, confirmed in R v Seaboyer, (SCC), [1991] 2 SCR 577 at paras 41-42, 84 DLR (4th) 193. [17] In R v Serhungo, the cell phone text data was excluded because in the factual matrix of the case the fact a particular cellphone had sent a certain message proved little.

The defence argument that the Crown has a kind of minimum threshold that it must passto prove the identity of who wrote and sent a particular text message is, therefore, correct. However, R v Serhungo shows this thresholdis not a test with some formulaic set of essential elements, but instead the question of whether cell phone text message evidence isrelevant and reliable is to be evaluated by viewing the Crown’s direct and circumstantial evidence as a whole.

For the purpose of the caseagainst Travis Vader that relevant evidence may include: • who purchased the cell phone, and paid for its service subscriptions, • in the case of the McCann phone, whether the usage of that phone was consistent or inconsistent with one of the McCanns actingas the operator of that phone in composing and sending the July 3 text, • the location(

s) from which a cell phone was used, • witness evidence on the exclusive or non-exclusive use of a cell phone, • the content of cell phone text messages and telephone calls, • patterns in cell phone and text message communications, including the text messages themselves, and • evidence from witnesses who received communications from a cell phone and who can identify the source of thosecommunications. [18] I have received much evidence on these points. For example, the witness Sheri Lynn Campbell testified that she had receivedcertain voice telephone calls from Travis Vader.

Telephone records establish that the Andrea Sexsmith 1685 phone was the source ofthose telephone calls. That is evidence that Travis Vader had control of and used that 1685 phone, and implies that Travis Vader ispotentially the source of text messages that also originated from the 1685 phone. The witness Andrea Sexsmith testified she purchased

the 1685 phone for Travis Vader to use. Many witnesses confirmed that they received communications from Travis Vader originating from that 1685 phone. The witness Amber Williams identified specific text messages which she received from the 1685 phone as being from Travis Vader.

This is all evidence that links Travis Vader to these particular devices, and implies that he is the source of text messages from those cell phones. [ 19 ] I find therefore that as a whole, the Crown’s evidence permits me to conclude that there is some basis to link Travis Vader to the communications sent from the cell phones in question, including text message information.

I will not dissect that evidence further at this point, as a detailed review on a message-by-message basis of whether a text message should be excluded as more prejudicial than probative should be made on all the evidence, including evidence which may be advanced by the defence. At this point, I conclude that evidence to date has established a connection between Travis Vader and the cell phones that were the source of the disputed text messages. [ 20 ] In the end, this all evolves to a single basic question: whether a particular text message is admissible as being more probative than prejudicial.

I will conduct that analysis, as necessary, in my trial judgment. IV. Conclusion [ 21 ] I conclude the disputed text messages are potentially relevant evidence and are admitted on that basis. Their ultimate weight, and admission under the general rule that evidence can only be considered if its probative value exceeds its prejudicial effect, will be determined at the end of the trial. Oral submissions heard on the 6 th day of May, 2016. Pronounced at the City of Edmonton, Alberta this 12 th day of May, 2016. Edited and published this 7 th day of June, 2016. D.R.G. Thomas J.C.Q.B.A. Appearances: Mr.

Ashley Finlayson, Q.C. and Ms. Eman Joumaa (Crown Prosecutors - Specialized Prosecutions Branch) for the Crown (Applicant) Mr. Nathan Whitling (Beresh Cunningham Aloneissi O'Neill Hurley) for the Accused (Respondent)

Trial management exhibit #1 R. v VADER, Travis Edward #130781800Q1 LIST OF CELL DATA EXHIBITS AND WITNESSES EXHIBIT # SCENE # DATE ENTERED WITNESS # & NAME DESCRIPTION DD April 5, 2016 # 31 Joanne Strawson April 4 & 5, 2016 TELUS Business Records TT 17-302 April 14, 2016 #37 Raymond Tardif April 14 Plastic Bag – sealed marked 17-302 – contents LG Cell phone battery 22 March 24, 2016 #24 Serge Morin BELL Cellular Statement August 9, 2010 page 5/5 VD 9-1 now 29 March 31, 2016 March 31, 2016 #29 Bruce Funk CV – Bruce Funk

VD 14-2 now 68 April 21, 2016 April 26, 2016 April 21, 2016 April 26, 2016 #54 Giancarlos Pomponi Affidavit of Joanne Strawson Various phone records 780-571-0943 7802-693-2453 780-819-0283 780-693-2453 780-517-0943 780-693-2453 780-728-1685 780-819-0283 VD-16-1 now 82 April 26, 2016 #54 Giancarlos Pomponi CV – Giancarlos Pomponi 91 April 28, 2016 #58 David Lussier 18 photographs taken by David Lussier on February 11, 2011 with respect to LG Phone 92 April 28, 2016 #58 David Lussier Exhibit Report re: 17-303 94 April 28, 2016 #58 David Lussier Subscriber Telephone Records page 152-163 re: Sherri Campbell 95 April 28, 2016 #58 David Lussier Subscriber Telephone Records re: Myles Ingersoll 102 May 4, 2016 #67 Lyne Langlois #68 William Nelson Virgin Mobile Records “P” Document 02225 Records related to phone 780-728-1685 July 1, 2010 to July 16, 2010 103 May 4, 2016 #67 Lyne Langlois #68 William Nelson Document 02208 re: purchase of $25 air time purchased July 3, 2010 by 780-728-1685 104 May 4, 2016 #67 Lyne Langlois #68 William Nelson TELUS Data and site information regarding information cell tower within TELUS system 124 May 9, 2016 #74 Jeffery Cameron #75 Shawna Lemiski Technological Crime Unit – Cell Phone Report – Sgt.

J.

Cameron E now 125 17-101 March 11, 2016 May 9, 2016 March 11, 2016 #1 Michael Donnelly May 9, 2016 #74 Jeffery Cameron #75 Shawna Lemiski Sealed plastic bag – opened – marked 17-101 Black LG cell phone S/N 001CYEA0208932 O now 126 17-303 March 18, 2016 May 9, 2016 March 18, 2016 #1 Michael Donnelly May 9, 2016 #74 Jeffery Cameron #75 Shawna Lemiski Sealed Plastic Bag – marked 17-303 LG Brand black metallic cell phone in 4 parts and LG brand red phone BBB May 3, 2016 #63 Sherri Campbell Virgin Mobile – Lawful Intervention Call Detail Report Doc #01343 – 780-728-1685 Doc #01341 – 780-728-1685 127 2 nd doc of BBB May 9, 2016 #74 Jeffery Cameron #75 Shawna Lemiski Virgin Mobile – Lawful Intervention Call Detail Report VMC999P Doc #01341 – 780-728-1685 CCC May 4, 2016 #67 Lyne Langlois #68 William Nelson Virgin Mobile Records “A” relating to 780-728-1685 July 1, 2010 to July 16, 2010 DDD May 5, 2016 # Chadwick Benko #73 Shauna Collins Map prepared by Analyst Richarson

EEE May 5, 2016 # Chadwick Benko #73 Shauna Collins Crown’s

Summary of selected telecommunication records in turn composed of information contained in a number of other exhibits for identification particularly Exhibit DD