R. v. N.J.S., 2010 BCSC 2016

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. N.J.S., 2010 BCSC 2016 Date: 20101130 Docket: 146983-2 Registry: Victoria Regina v. N.J.S. Notice: This Judgment was edited for publication purposes on May 23 rd , 2014. Restriction on Publication: Pursuant to s. 486.4(1) & 486.5(1) C.C.C. Before: The Honourable Mr. Justice G.R.J. Gaul Oral Ruling re: Voir Dire #1 Re: Admissibility of Email Messages Counsel for the Crown: N. Jensen Counsel for the Accused: D. Christie Place and Date of Trial/Hearing: Victoria, B.C. November 29, 2010 Place and Date of Judgment: Victoria, B.C.

November 30, 2010 [ 1 ] THE COURT: The accused, N.J.S., is charged with one count of communicating for the purpose of obtaining for consideration the sexual services of a person under the age of eighteen years, contrary to section 212(4) of the Criminal Code . [ 2 ] The Crown wishes to tender into evidence certain emails allegedly authored by the accused. There are actually two sets of emails: one from 14 April 2009, and another from 25 June 2009. [ 3 ] The defence objects to the admissibility of the emails on the grounds that their prejudicial effect outweighs their probative value.

Facts [ 4 ] The evidentiary foundation for this voir dire consisted of an Agreed Statement of Facts filed as Exhibit 1, as well as the testimony of Constable Kerrilee Jones. [ 5 ] In early 2009, the Saanich Police Department began investigating the possible misuse of Craigslist , a free online classified advertising service.

The investigation was designed to identify persons using Craigslist for the purpose of obtaining the sexual services of persons under the age of eighteen years. [ 6 ] On 14 April at approximately 8:30 a.m., Constable Andy Stuart of the Saanich police posted an advertisement in the “Erotic Services”

section of Craigslist for the City of Victoria (the “Advertisement”). [ 7 ] At 11:16 a.m., a person using the email address [Email #1] (“JB”) responded to the Advertisement. Between 11:16 a.m. and 12:14 p.m. multiple emails were exchanged between JB and the Saanich police, who were posing as the madam for the girls advertised on Craigslist (“Jenelle”, who was said to be aged 16 and ”Courtney”, who was said to be aged 17). JB indicated he was interested in purchasing the sexual services of one or both of the girls and enquired about their “rates”. He also asked for pictures of them.

The officer posing as the madam informed JB of the costs if he wanted one or both of the girls and she also sent him two pictures that were said to be of the girls. JB eventually confirmed he would pay $200 for one hour of sexual activity with Jenelle. [ 8 ] The undercover officer informed JB that she would meet him at the rear parking lot of the Accent Inn Hotel on Blanshard Street at 1:00 p.m., and that she would be waiting for him in a gold Nissan Altima.

JB indicated that he would meet her at the designated time and place and would be driving a black four-door Toyota Matrix. [ 9 ] At or around 1:00 p.m. on 14 April 2009, the accused attended at the rear parking lot of the Accent Inn, driving a black Toyota Matrix. He parked his vehicle and approached the undercover police officer, Constable Jones, who was standing next to a gold Nissan Altima. Constable Jones greeted the accused and he responded by saying “I assume you are the gold Nissan”.

[ 10 ] A conversation between the accused and Constable Jones ensued about the nature of the sexual activity the accused wanted with Jenelle and how he would pay for it. After the conversation, Constable Jones gave the accused a key to a room in the hotel where Jenelle was supposedly waiting. He proceeded to that room and upon entering it he was arrested by Constable Andy Stuart and other members of the Saanich Police. [ 11 ] On 25 June 2009, the Saanich police posted another advertisement on Craigslist , similar to the one they had posted on 14 April 2009 (the “Second Advertisement”).

The Second Advertisement included a picture similar to the one of Jenelle that had been sent to JB on 14 April 2009. [ 12 ] At or around 5:04 p.m. on 25 June 2009, a person with the email address [Email #2] (“N.J.S.”) responded to the Second Advertisement. Between 5:04 p.m. and 6:20 p.m., a number of emails were exchanged between N.J.S. and the Saanich Police, who were again posing as a madam offering the sexual services of a fictitious young woman (“Heather”, aged 18). In one of those emails, N.J.S. wrote: on april 14 that girl was named janelle . . .

I have a pic right here of her . . . same as that one . . . and she was a minor . . . supposedly . . . was it a lie then or now? why dont you guys chase real criminals instead of dragging decent people in for stuff you fabricate? Say hi to Andy Stuart. you people are pathetic. [ 13 ] A few minutes later, at 5:56 p.m.

N.J.S. sent another email: pretty quiet now . . . cop got your tongue. [ 14 ] The Saanich police did not respond to these messages from N.J.S. [ 15 ] At 5:58 p.m., N.J.S. sent the following email: you guys are so eager to pimp...why not use your cells as rooms for the girls? whos gonna know? who’ll bust in then? seems a safe place to go. [ 16 ] Having not received any responses to his most recent messages, N.J.S. sent another one at 6:11 p.m.: sure quiet now...why don’t you guys remove craigslist? seems youd get rid of escorts, pimps, cop pimps, and alot of other stuff...why is this forum allowed to exist? you are chasing the wrong people...you make crooks out of honest people...I hope you sleep well at night knowing you are creating criminals rather than busting real ones...where is the line of when a cop is a pimp? .. and a pimp is just a pimp...what sets you apart?

Im having A hard time telling the good guys from the bad guys these days. maybe you can clarify it for me. Im interest in your response. would be nice to know which side is the good guys if real trouble occurs. they used to wear white hats and stand for justice,,,,now..hmmm..maybe you can tell me...what do you stand for now? [ 17 ] The final message sent by N.J.S. was at 6:20 p.m.: see when it comes to providing answers on truth and justice you don’t have it. its not in your handbook anymore...its too bad you have no response.

I am genuinely interested in an answer....what separates you from the bad guys? bad guys coerce, entrap, and fraud...very little is different from what you do...tho yours is in the name of justice....I wish you guys would wear white hats...at least there would be the perception of good guys providing “justice” because in the movies good guys wear white hats.

Please consider this as an option to a uniform upgrade...it may put the general public at ease at least from a distance. for now its difficult to know which guys are the good guys Issue [ 18 ] There are two interrelated questions to be determined on this voir dire : 1. Are the emails in question relevant? 2. If the emails are relevant, then should they be excluded from evidence because their prejudicial effect outweighs their probative value? The Law [ 19 ] The principles relating to the relevance and admissibility of evidence are set out in the authorities cited by the Crown. [ 20 ] In R. v.

Corbett , 1988 CanLII 80 (SCC) , [1988] 1 S.C.R. 670 at p. 714, La Forest J. neatly summarized the concept of relevance as follows: The organizing principles of the law of evidence may be simply stated. All relevant evidence is admissible, subject to a discretion to exclude matters that may unduly prejudice, mislead or confuse the trier of fact, take up too much time, or that should otherwise be excluded on clear grounds of law or policy. [ 21 ] Although La Forest J. dissented in the result in Corbett , his remarks have been adopted in later cases as a proper articulation of the concept of relevance.

As Doherty J.A. explained in R. v. Watson (1996), 1996 CanLII 4008 (ON CA) , 108 C.C.C. (3d) 310 (Ont. C.A.), at p. 323: While La Forest J. dissented in the result in Corbett , his discussion of the significance and meaning of relevance is consistent with previous and subsequent majority decisions of the Supreme Court of Canada: R. v. Morris , supra , per McIntyre J., at pp. 98-99, per Lamer J. (dissenting in the result) at pp. 105-106; R. v. Seaboyer (1991), 1991 CanLII 76 (SCC) , 66 C.C.C. (3d) 321 (S.C.C.) at 389- 392.

Relevance as explained in these authorities requires a determination of whether as a matter of human experience and logic the

existence of "Fact A" makes the existence or non-existence of "Fact B" more probable than it would be without the existence of "Fact A". If it does then "Fact A" is relevant to "Fact B". As long as "Fact B" is itself a material fact in issue or is relevant to a material fact in issue in the litigation then "Fact A" is relevant and prima facie admissible. [ 22 ] In R. v.

Seaboyer , 1991 CanLII 76 (SCC) , [1991] 2 S.C.R. 577, McLachlin J. (as she then was) addressed the discretion to exclude evidence because its prejudicial effect outweighs its probative value at p. 609: It is fundamental to our system of justice that the rules of evidence should permit the judge and jury to get at the truth and properly determine the issues. This goal is reflected in the basic tenet of relevance which underlies all our rules of evidence: see Morris v. The Queen , 1983 CanLII 28 (SCC) , [1983] 2 S.C.R. 190 and R. v. Corbett , 1988 CanLII 80 (SCC) , [1988] 1 S.C.R. 670.

In general, nothing is to be received which is not logically probative of some matter requiring to be proved and everything which is probative should be received, unless its exclusion can be justified on some other ground. A law which prevents the trier of fact from getting at the truth by excluding relevant evidence in the absence of a clear ground of policy or law justifying the exclusion runs afoul of our fundamental conceptions of justice and what constitutes a fair trial. The problem which arises is that a trial is a complex affair, raising many different issues.

Relevance must be determined not in a vacuum, but in relation to some issue in the trial. Evidence which may be relevant to one issue may be irrelevant to another issue. What is worse, it may actually mislead the trier of fact on the second issue. Thus the same piece of evidence may have value to the trial process but bring with it the danger that it may prejudice the fact-finding process on another issue. The law of evidence deals with this problem by giving the trial judge the task of balancing the value of the evidence against its potential prejudice.

Virtually all common law jurisdictions recognize a power in the trial judge to exclude evidence on the basis that its probative value is outweighed by the prejudice which may flow from it. Position of the Crown [ 23 ] The Crown says the emails in question are admissible, because they are relevant to proving there was communication between the accused and the undercover police and that the communication was for the purpose of obtaining the sexual services of a person under the age of 18.

The Crown also argues the emails, and in particular those from 25 June 2009, are relevant because they provide some evidence that identifies the accused as the author of the 14 April 2009 emails. Position of the Defence [ 24 ] In arguing the emails are inadmissible, the defence submits it would be speculative on the part of the court to conclude that the author of the first set of emails was the accused. With respect to the second set of emails, the defence says they are not probative of any issue at trial.

The defence points to the fact that there were a number of responses to the Advertisement on 14 April 2009, and therefore there is insufficient linkage between the accused and the emails from JB to make them relevant and therefore admissible. Moreover, according to counsel for the accused, the emails of 14 April are evidence that connects the accused to events and actions to which he is not connected by any other evidence and therefore this prejudicial effect of the evidence outweighs its probative value.

Decision Relevance [ 25 ] The emails of 14 April 2009 reference the nature of the sexual activity being sought, the price for the activity, and the age of the girls in question. In my opinion, these emails are relevant to the question of whether there was communication for the purposes of obtaining sexual services of a person under the age of eighteen. [ 26 ] I also find the emails of 14 April are relevant to the issue of the identity of JB. The accused attended at the time and place agreed to between JB and the undercover officer.

The accused arrived driving the same type and colour of vehicle that JB referenced in one of his messages. The accused approached the undercover officer who was standing near a gold Nissan Altima and actually used the terms “gold Nissan” when he first spoke with her. The accused also referred to “Jenelle” when speaking with the undercover officer. Finally, the accused had two hundred dollars in cash when he was arrested.

In my view, when the accused’s actions on 14 April are juxtaposed with what was discussed and agreed upon in the emails between JB and the undercover police, the relevance of the emails becomes even more pronounced. [ 27 ] As for the emails of 25 June 2009, I find these messages also address the issue of who authored the JB emails of 14 April 2009.

The emails from N.J.S. on 25 June indicate that the author of the messages knew of “Jenelle” on 14 April; knew the police had posted the Advertisement on Craigslist , and believed Constable Andy Stuart, the officer who arrested the accused on 14 April, was involved in the second Advertisement. There is, in my opinion, a cogent link between the two sets of emails that make them relevant to the question of who authored the emails of 14 April.

Prejudicial Effect versus Probative Value [ 28 ] I have considered counsel for the accused’s submissions regarding the prejudicial effect of the proposed evidence and find myself unable to agree with him. In my opinion, the admission of the emails into evidence would not be unduly prejudicial to the accused or create any trial unfairness. In my view there is an evidentiary linkage between the emails and the accused’s actions.

In other words, having found the emails to be relevant and material to issues in this case, I do not find their admission into evidence would mislead or confuse the triers of fact or take up an inordinate amount of trial time. Respectfully, that is as far as I need to go on this point, as it will be for the jury, as the triers of fact, to decide what, if any weight, they will give to the evidence. [ 29 ] The defence’s objection to the admissibility of the emails is overruled. The emails are admissible into evidence. “G.R.J. Gaul J.”