R. v. J.V., 2015 ONCJ 837

WARNING The court hearing this matter directs that the following notice be attached to the file: A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (

a) any of the following offences: (

i) an offence under

section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under

section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or

section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code ,

chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (

b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs ( a )(

i) to (iii).

(2) Mandatory order on application. — In proceedings in respect of the offences referred to in paragraph (1)(

a) or ( b ), the presiding judge or justice shall (

a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (

b) on application made by the complainant, the prosecutor or any such witness, make the order. . . . 486.6 Offence. —

(1) Every person who fails to comply with an order made under subsection 486.4(1) , (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on

summary conviction. CITATION: R. v. J.V. , 2015 ONCJ 837 DATE: July 14, 2015 ONTARIO COURT OF JUSTICE (East Region) Her Majesty the Queen v. J.V. and P.V. Before Justice David M. Paciocco – Ottawa, ON Decision on the Admissibility of Electronic Documents Released July 14, 2015

Mrs. M. Cunningham……….……………………………………………………..for the Crown Mr. G. Barnes…..…………….………………………………………..……for the Accused, J.V. Mr. W. Murray…………….………………………………………………for the Accused, P.V. Paciocco J. I. Introduction [1] Electronic documents, in the form of excerpts from Kl.V.’s Facebook page, were tendered by P.V. and admitted on consent asexhibit 5. The Crown sought the admission of three other, distinct “electronic documents” during a blended admissibility voir direconducted during the trial.

The defence has not consented to the admissibility of these documents, and initially raised some objections,but ultimately chose not to pursue arguments against their admissibility. At the close of the case, I ruled all three packages of documentsto be admissible with reasons to follow. These are my reasons for admitting those records, now exhibits 6(a), 6(b), and 9 (Kl.V.’s“Google Hangout” Chats, exhibit 7 (K.V.’s Gmails), and exhibit 8 (K.V.’s “Google Hangout” Chats). II.

Admissibility Standards Introduced [2] In order to present electronic documents as evidence, two material requirements of sections 31.1 to 31.8 of the Canada EvidenceAct, R.S.C.1985 c.C-5, the “electronic document” provision, must be complied with, namely “authenticity” and compliance with the“best evidence rule in respect of electronic documents.” “Authenticity” is addressed in subsection 31.1.

That provision assigns the partypresenting the documents “the burden of proving [their] authenticity by evidence capable of supporting a finding that the electronicdocument is that which it is purported to be.” As will be seen, the “best evidence rule in respect of electronic documents” is not about thepresentation of an original document, and therefore differs from the common law best evidence rule. This rule is concerned with theintegrity or reliability of electronic records.

A party presenting electronic records must satisfy the “best evidence rule in respect ofelectronic documents” provided for in subsection 31.2, and associated provisions. [3] Given that exhibits 6(a), 6(b), 7, 8 and 9, purport to contain statements or “admissions” by the two accused persons,independently of the electronic document provisions, the prerequisite to the admissibility of admissions by an opposing party litigantmust also be met.

Specifically, before they can be admitted into evidence, the Crown, who presented these documents, must prove on thebalance of probabilities that the statements contained in the documents that are attributable to an accused person were made by thataccused person: R. v. Evans, (SCC), [1993] 3 S.C.R. 653 at para. 25.

Authorship can be inferred circumstantially fromthe document, including such things as the source of the information, access to the relevant email or social media address, the disclosureof details known to the purported author, and the nature of the exchanges between the parties, particularly where the exchanges relate tomatters shared between the parties: see, for example, R. v. S.(I.W.), [2013] O.J. No. 2986 (Ont.S.C.); R. v. Quatrale, 2015 ONCJ 101; R.v. Mills, 2014 NLPC 0112A0170. Common sense must be applied.

It cannot be forgotten, for example, that even at common law, aresponse to correspondence was presumed to be from the addressed recipient: Montgomery v Graham (1871), 31 U.C.Q.B. 57 (C.A.).

Iam not suggesting that a formal presumption about authorship applies in the context of electronic documents, but that doctrine illustratesthat just as it is it is ordinarily reasonable for a party can rely upon a response from an addressed recipient, absent an indication that aperson responding is not the intended communicant, it will typically be appropriate to infer that the correspondent is probably theintended communicant. III.

Kl.V.’s “Google Hangout” Chats [4] The first set of electronic records was a Google Hangout “conversation” between Kl.V.’s Google Hangout account and anaddress, named “unknown person,” that took place between February 25, 2014 and March 12, 2014. I was presented with two distinctformats of that conversation. The first format, photographs that depict the conversation displayed on a cellphone, was used by Kl.V.during her testimony in chief. The second format, an Excel spreadsheet created using software to download the contents of a GoogleHangout account, was used by Det.

Villeneuve, an expert witness from the Ottawa Police Service Computer Crime division, to explainthe Google Hangout program and to further authenticate the documents. I must address the admissibility of both formats because eachwas relied upon by different witnesses to confirm the admissibility of Kl.V.’s Google Hangout conversation. [5] I will address the photographs first. Initially, Kl.V. was shown a package of photographs purporting to capture screen displays ofa Google Hangout conversation, accessed on her cellphone.

That document, now exhibit 6(a), was marked as exhibit “A1.”Subsequently, a more easily readable version of the same document was produced and presented as exhibit “A2.” It is now exhibit 6(b). [6] The screen photographs exhibited in these two documents were taken by Det. Villeneuve, with the assistance of Det. JackWoods. Both officers testified to the process they employed. The file containing the conversation thread was opened using a usernameand password provided by Kl.V., and then Det. Wood advanced through that conversation thread and held the phone while Det.Villeneuve photographed the phone.

Photographs of the screen were resorted to because the Ottawa Police Service did not have themeans to print them directly, and there was urgency in disclosing the conversation thread to the defence. The photographs overlap in thesense that subsequent photographs begin with the closing text from the prior photographs. During her testimony, Kl.V. recognized herphone in the photographs, as well as the messages.

She said they were from her Google Hangout account, and depicted an electronicconversation she had with her parents. [7] I am satisfied that photographs of electronic documents being displayed on a cellular phone screen can be admitted if the otherprerequisites to admissibility are met.

The relevant sections make “electronic documents” admissible, and the definition of “electronicdocument” “includes a display, printout or other output of that data.” The photographs are real evidence images of the displayedmessages from Kl.V.’s Google Hangout account, accessed using her cellular phone, “a computer system or other similar device.”

[8] The second format of the conversation, the Excel spreadsheet now exhibit 9, was prepared with data extracted directly fromKl.V.’s “Google Hangout” account by Det. Villeneuve, after the photographs were admitted. Det. Villeneuve explained that OttawaPolice Service equipment cannot print information directly from an IPhone that uses the operating system that Kl.V.’s phone employs.He therefore used software and a computer to do a “data dump” from her phone to an empty Android phone, which then permitted thedata to be extracted and put into the Excel format that became exhibit “L” during the voir dire. Det.

Villeneuve testified that this datadump captures the entire “Google Hangout” account. The Excel spreadsheet produced to present the account in court does not, fortechnical reasons, include every exchange made during the conversation. The size of the cells in the spreadsheet does not permit longercomments to be reproduced. Instead, it replaces the text with a series of “x’s,” as placeholders for the edited part of the conversation.Comparing the Excel spreadsheet content with the photographs confirms that both documents exhibit the same conversation. [9] Do these documents, now exhibits, 6(a), 6(

b) and 9, satisfy the first inquiry into authenticity? [10] I have seen it expressed that the “authenticity” of electronic documents must be established to the standard of a “balance ofprobabilities.” In my view, this is not the appropriate standard of proof under subsection 31.1 of the Canada Evidence Act for electronicdocuments.

Subsection 31.1 says that the burden of proving authenticity is met “by evidence capable of supporting a finding that theelectronic document is that which it is purported to be.” On the plain words of the section, the party presenting an electronic documentneed not persuade the trial judge that it is what they purport it to be.

They need merely present “evidence capable of supporting” such afinding. [11] This intentionally “low” standard for admissibility simply reflects the common law standard of authenticity, which is more in thenature of a showing of a prima facie case for authenticity, than full establishment of authenticity. This standard is used because it is bestleft to triers-of-fact to decide whether they will ultimately accept that the evidence is that which a party purports it to be.

The objective ofthe provision is to determine whether the thing in question is worth showing to the trier of fact so that the trier of fact can decide what tomake of it: R. v. Donald, (NB CA), 1958 CarswellNB 4, 121 C.C.C. 304 (N.B.C.A.) at para. 7. [12] To give an example, if a witness for the Crown testifies that a document is from their Facebook page, and a defence witness saysit is not, that dispute should be resolved by the trier-of-fact in light of all of the evidence, not as a preliminary issue of admissibility: seeR. v. Butler, 2009 CarswellAlta 1825, [2009] A.J. No. 1242 (Alta.Q.B.).

This low standard is not alarming, even for electronicdocuments, some forms of which are capable of alteration. This is because authentication does not assure the admissibility of electronicdocuments. Issues relating to the threshold accuracy of electronic documents for admissibility purposes are brokered independentlythrough the “best evidence rule in respect of electronic documents” housed in subsection 31.2. [13] I am satisfied that the Crown has demonstrated the authenticity of exhibits 6(a), 6(

b) and 9. There is evidence capable ofsupporting a finding that each version of the electronic document is that which it is purported to be, namely a “Google Hangout”conversation between Kl.V. and her parents. Indeed, even if the standard had required proof on the balance of probabilities, that casewould have been made out. [14] First, Kl.V. identified the photographs in exhibit 6(

a) as the conversation she had with her parents. Her claim can be taken asapplicable to the identical but more convenient reproduction of the same document in exhibit 6(b). And given that exhibit 9 depicts thesame conversation in Excel spreadsheet format, her claim applies to this exhibit as well. [15] Second, Det. Villeneuve offered expert testimony about Google Hangout. He explained that Google Hangout is a social media,instant messaging, computer program accessed through a Gmail account, using any computer or computer device that has networkaccess.

The specific Google Hangout account housing the conversations is then accessed with a username and password. Kl.V. not onlysupplied the access information, she also said that the messages in question were exchanged through such an account. [16] Det. Villeneuve also explained that this program is web-based. He testified that messages are sent and received in a conversationthread, which can take place over many days, and that they are automatically stored chronologically along with other messagesexchanged.

They are kept in this way in Google’s computer servers, colloquially called “the cloud.” He explained that while entireconversation threads can be deleted from the account, it is realistically impossible to edit comments exchanged in the originalconversation, since they are accessed through the cloud, which stores the original version. [17] Kl.V. did testify that she saved a copy of this conversation in a separate Gmail file, out of an abundance of caution, because shebelieves that, over time, Google makes older conversations inaccessible through the account.

Kl.V. said she never deleted any messagesfrom this conversation thread. She copied and pasted all of the messages she could into that file. [18] It is not clear on the evidence before me whether the photographs were taken of the conversation depicted directly on an openedGoogle Hangout program, or whether it depicts the saved conversation in the Gmail file Kl.V. created. Given the evidence before me, itdoes not matter.

Kl.V.’s direct testimony that the photographs depict the conversation is evidence capable of finding the two versions ofthe conversation to be authentic according to the standard in subsection 31.1. In any event, Det. Villeneuve captured the conversationshown in exhibit 9, the Excel spreadsheet, directly from the Google Hangout account.

This provides redundant verification that even ifthe photographs show the messages found in the saved Gmail file, those photographs capture the conversation found in Kl.V.’s GoogleHangout account. [19] Counsel for J.V. and P.V. raised the concern that these exhibits, while perhaps a complete thread of the conversations theydepict, show only one thread of many electronic conversations Kl.V. had with her parents, using a variety of media. They object that theconversation tendered by the Crown is selective. This may be so, but the selection of an isolated, authentic conversation does not destroyauthenticity.

The evidence purports to be no more than the one conversation thread the Crown chooses to rely upon. The objection thatthe exhaustive production of all conversations may have provided a context within which to understand this conversation is a matter ofweight, not admissibility. [20] What, then, of the second prerequisite to the admission of electronic documents?

Compliance with the “best evidence rule inrespect of electronic documents” in subsection 31.2 requires either “proof of the integrity of the electronic document system by or inwhich the electronic system was recorded or stored,” or the application of an “evidentiary presumption” established under

section 31.3 or

31.4. [21] When a party wishes to satisfy the “best evidence rule in respect of electronic documents” using the first method - by “proof ofthe integrity of the electronic document system” - the requisite standard of proof is proof on the balance of probabilities. This is becausewhen an evidentiary provision calling for proof does not specify the standard to be used, the appropriate standard is “the balance ofprobabilities”: R. v.

Oakes (1986), (SCC), 50 C.R. (3d) 1 (S.C.C.). [22] The alternative route to satisfying the “best evidence rule in respect of electronic documents” is to use the rebuttablepresumptions found in subsections 31.3 or 31.4. Not all of these evidentiary presumptions are triggered by the same standard of proof.The presumption in subsection 31.3(a), for example, applies the same standard of proof as the authenticity provision.

It can be used by aparty if there is “evidence capable of supporting” a finding that its preconditions are met, provided that the presumption is not rebutted.All other presumptions require the party to “establish” the conditions they describe. “Establish” means “to prove” the statedpreconditions. These other presumptions operate only if their preconditions are proved on the balance of probabilities, and the fact theypresume is not rebutted. [23] In this case I find that the presumption in subsection 31.3(

a) to be applicable. It says that: “in the absence of evidence to the contrary, the integrity of an electronic document system by or in which an electronic document isrecorded or stored is proven (

a) by evidence capable of supporting a finding that at all material times the computer system or other similar device used by theelectronic document system was operating properly, or, if it was not, the fact of its not operating properly did not affect the integrity ofthe electronic document and there are no other reasonable grounds to doubt the integrity of the electronic document system.” [24] As indicated, Kl.V. testified that the photographs depicted the conversation that she had with her father during the relevantperiod.

This testimony is circumstantial evidence that the electronic document system, the Google Hangout cloud server, captured theconversation, and that the computer systems used to display the conversation must have been operating properly. Simply put, herevidence implies that the relevant computer systems did what they were meant to do, namely capture the recognized conversation. [25] This type of reasoning has been applied in other cases. In R. v. Nichols, 2004 CarswellOnt 8225, [2004] O.J.

No. 6186 (Ont.C.J.)the court found that a 911 call system was operating properly because the person who made the call testified that the recorded messagewas accurate. The Ontario Court of Appeal decision in R. v. Woodward, 2011 ONCA 610 , 2011 CarswellOnt 9823, [2011] O.J.No. 4216, although not directly on point, illustrates similar reasoning. The issue there was whether a computer performed “logic andcontrol” functions.

The Court drew the conclusion that “the fact that voluminous text messages in this case were successfully sent andreceived by their intended recipient is evidence that the computer program … performed ‘logic and control’ functions.” Similarly, thefact that instant messages identified by Kl.V. were successfully sent and received using Google Hangout during the relevant period, isevidence that the electronic document system was operating properly.

This is particularly so given that the messages are depicted ascoherent, and where appropriate, are responsive to each other. [26] This circumstantial evidence triggers the presumption, and there is no “evidence to the contrary” or any “reasonable grounds todoubt the integrity of the electronic system” to rebut the presumption. [27] The fact that Kl.V. agreed that it would be possible to delete messages does not change this, even leaving aside that Kl.V. denieddeleting any messages, and even disregarding the evidence of Det.

Villeneuve that the download from Kl.V.’s Google Hangout accountwould have captured the complete account. The prospect of a user deleting messages has nothing to do with the integrity of the electronicdocuments system, the relevant concern of the best evidence rule. Subject to the general discretion to exclude prejudicial evidence, therisk of tampering is a matter relevant in deciding whether to act on the contents of the admitted conversation. [28] I also find on the balance of probabilities that exhibits 6(a), 6(

b) and 9 reflect conversations between Kl.V. and her father, J.V.,as well as one comment exchanged from her mother, P.V., on March 8, 2014 at 8:48 a.m. [29] First, I accept Kl.V.’s evidence that she had communicated with her father using the contact information she knew to be used byhim, and that she believed she was speaking to him, or on the one occasion identified, to her mother.

Second, the comments attributed byher to J.V. contain admissions of his drug addiction, frequent references to the gym and his body building, and reveal an obsession withKl.V.’s interest and activities with boys, all things the admissible evidence in the case confirms to be important biographical informationabout J.V..

Third, the conversations relate to events that were of interest to J.V. and within his frame of knowledge and interest, includingthe home in Kl.V.’s name that J.V. and P.V. were finishing up in Prince Edward Island, as well as conversations about the e-bay businessthat uncontested evidence shows to have been operated by Kl.V. and her parents.

Finally, the communications include the unusualterminology that J.V. would use, including family nicknames, and references to Kl.V as “Lil Eddie”, and “slut” and “whore,” and “bestbuds ever.” J.V. participated in these conversations. [30] I have no basis for believing that P.V. participated in any of these conversations, other than the isolated March 8, 2014, 8:48 a.m.message. I accept on the balance of probabilities that P.V. authored that comment. I do so because I accept Kl.V. ’s evidence that P.V.was with J.V. at the time.

I also accept that P.V. would “sometimes go on and message through my father” something both Kl.V. andK.V. confirmed in their evidence. The passage purports to speak with P.V.’s voice about what J.V. was going through. Her intercessionon his behalf is similar to other messages attributable to P.V. in the other electronic conversations described below. I am satisfied on thebalance of probabilities that P.V. was the author of this message.

There is no basis for concluding that J.V. participated in or directed it. [31] All of the legal prerequisites to admissibility of Kl.V.’s Google Hangout conversation have therefore been satisfied, including ashowing that the conversations were with the accused persons. For that reason I admitted voir dire exhibits “A” and “A1,” thephotographs of the screen captures from Kl.V.’s phone, as trial exhibits 6(

a) and 6(b). I also admitted exhibit L, a “spreadsheet” of themessage history prepared by Det. Villeneuve, as exhibit 9. [32] As a matter of law, “admissions” or statements not in furtherance of a conspiracy are admissible solely against the maker, and not

a co-accused. The conversations I have identified, with the exception of the 8:48 a.m. March 8, 2014 contact, are therefore admissible solely in the case against J.V. The 8:48 a.m. March 8, 2014 contact is evidence solely in the case of P.V. IV. K.V.’s Gmails [ 33 ] The second electronic document sought to be admitted by the Crown is voir dire exhibit B, presented as a “Gmail exchange” between K.V. and J.V. I have made it exhibit 7 in the trial.

This document consists of email communications that K.V. said she exchanged with [j]… @gmail.com , an account she identified as used by her father, J.V., and her mother P.V. The document depicts this email address, as well as an address claimed by K.V. to be her own. Her testimony, coupled with the testimony of Det. Villeneuve that Gmail is Google’s email service capable of exchanging email messages, is sufficient evidence to authenticate this document. This is “evidence capable of supporting a finding that the electronic document is that which it is purported to be,” within the meaning of subsection 31.1.

Based on this evidence, and the information about to be described, I would have been persuaded of authenticity even if the balance of probabilities had been the requisite standard. [ 34 ] The “best evidence rule in respect of electronic documents” is also met. Once again, the presumption in subsection 31.3(

a) applies.

K.V. testified that this is the email exchange she had with her father, which was saved into a file, “father-messages.” That the exchange recorded and retrieved using K.V.’s email account and password, is the same conversation she testified to having had with her parents, is circumstantial evidence capable of supporting a finding that the electronic document system (once again the Google server where Gmail messages are stored as they are exchanged or saved, and the computer system she used to access the messages) “was operating properly” “at all material times.” [ 35 ] Is there evidence to the contrary or other reasonable grounds to doubt the integrity of the electronic document system?

One of the messages does disclose a claim by K.V. at 3:42 p.m. on Friday March 7, 2014 that her “messages arent coming into her inbox right they are messing up again cause T’s stupid computer.” K.V. testified that “T” was her boyfriend at the time, and the internet connection to T’s computer was weak. Whatever the problem was, it is evident from looking at the messages that they are coherent and responsive. If there was an issue, it was that K.V. may not have received some sent messages. There is no evidence that the problem corrupted the messages that are in the document.

I do not believe, therefore, that this is evidence that the electronic document system was not operating properly. It is at most evidence that not all of the messages sent by “[j] …b” were received on T’s computer. Even if the failure to capture all messages is evidence that the electronic document system was not operating properly, it did not affect the integrity of the document that the Crown is seeking to rely upon, namely those messages that are being tendered as evidence.

Based on the testimony of K.V., I am persuaded that those messages that are produced are accurate, and the prospect of missing messages is a matter that goes to weight, not admissibility. [ 36 ] I am also persuaded, on the balance of probabilities, that these email messages were exchanged between K.V. and the accused, J.V. The account was used by K.V. to communicate with her father, and she believed she was communicating with him through these messages.

These messages once again disclose information relevant to J.V. and about which he would have knowledge, as revealed by other evidence in the case, including that he once took Kl.V. to NS (Nova Scotia) and believed she was “fucking the [F] boys,” and that he was “hooked on cocaine.” “[j]...b” also alludes to conversations with Kl.V. that are reflected in exhibit 6(a), 6(

b) and 9 as including J.V., and “[j]...b” threatens to kill himself, something that J.V. did in those electronic conversations with Kl.V.. “[j]...b” also refers to Kl.V.’s ghetto friends, a reference he made in the “Google Hangout” chats with Kl.V. These emails also speak of “plumpa,” the family name for J.V.’s father, as well as Plumpa going to the casino. There is ample testimony before me that Plumpa habitually went to the casino.

The email exchange also speaks of going to the gym, a habit of J.V.’s. [ 37 ] I am also satisfied on the balance of probabilities that P.V., who was with J.V. on March 7, 2014, participated in some of these message exchanges. The messages starting at 3:37 p.m., and ending at 3:41 p.m., purport to be about J.V., beginning with the comment, “He said this one hurt bad it was a premature K.V.” K.V. explained that she was “premature” and her father used the term to insult her.

The next message refers to “Daddy,” an apparent reference, in context to Jonathan, and at 3:41 there is a reference to the contents of a telephone conversation that “Daddy had with [Kr.].” Once again, we know that P.V. was present with J.V. in Prince Edward Island, at the material time. [ 38 ] I am therefore admitting the Google email messages, other than those referred in the prior paragraph, as evidence admissible in the trial against J.V. The messages referred to in the prior paragraph will be admissible in the trial of P.V. V.

K.V.’s “Google Hangout” Chats [ 39 ] The final electronic document sought to be admitted by the Crown, exhibit “C” in the voir dire , which I made exhibit 8 in the trial, is a running printout of Google Hangout messages, from a file entitled “Hangout with “[j]...b.” The format is different than the Google Hangout photographed from Kl.V.’s phone. The exhibit “C” messages are presented as one continuous chain of communications between March 5 and March 7, 2014.

Although the person initiating each communication is identified, namely “K.V.” and “[j]...b,” the communications are not presented in their own “bubble.” They run sequentially as text. K.V. testified that these messages capture a Google Hangout conversation she had with her father and mother.

She saved the conversations in a Gmail file by cutting and pasting the communications into an “inbox file” she created, called “father messages,” She printed the messages offered in exhibit “C’ directly from that file, using the Gmail print function. [ 40 ] These emails have been “authenticated” by the testimony just described, thereby satisfying subsection 31.1. Indeed, the evidence before me is that Google Hangout is accessed from the same program - Gmail - that can offer email exchanges.

Both this Google Hangout account and the email account authenticated in exhibit 7, share the same identifier, “[j]...b.” All of this is “evidence capable of supporting a finding that the electronic document is that which it is purported to be.” [ 41 ] The presumption in subsection 31.3(

a) is available to satisfy the “best evidence rule for electronic documents,” relating to exhibit

“C’, for reasons similar to those offered for the other electronic exhibits. This exchange was identified by K.V. as authentic. The printout verifies that it was received, saved and successfully retrieved by K.V., using her Gmail account.

This is adequate circumstantial evidence to support a finding that the electronic document system (once again the Google server where Gmail messages are stored as they are exchanged or saved, and the system used to display those messages) “was operating properly” “at all material times.” No evidence has been offered to rebut this inference, and I draw it, triggering the presumption. [ 42 ] Again, for now familiar reasons, I am satisfied that these messages were exchanged between K.V. and her parents. As indicated, K.V. testified that the Gmail account “[j]...b,” was used by both accused.

The document contains themes now familiar from the other electronic documents I have admitted or evidence I heard about J.V.’s concerns, including derogatory comments about “Tanya,” who the evidence shows to be J.V.’s sister who he feared was intermeddling with Kl.V., about Kl.V. hanging around with “ghetto” friends, about the dispute with Kl.V. relating to the house, about drug abuse and about P.V. having cheated on him.

The record purports at all times to be an electronic conversation involving one or the other of her parents, and it includes reference to the family nicknames, such as K.V., “kacky,” and “ploompa.” [ 43 ] I have no doubt from the content that J.V. is the one communicating with K.V. in the first 4 pages. Intermittently, after that the communications from “[j]...b” identify “mom” as the speaker. This includes most of page 5, until the close of the March 4, 2014 messages, on page 6, where the context shows P.V.’s participation.

At that time it is evident that J.V. was present and made some of the comments, which are easily identifiable. I am satisfied on the balance of probabilities that J.V. once again takes over from there, until P.V. is identified as the direct communicant on page 10, after “heres your mom.” P.V. then carries the conversation until the top of page 13, where J.V. comes back on to tell K.V. that he is “doing a song.” P.V. is again the person actively communicating on March 7, page13 through to the end of page 18.

During this last part of the running conversation shown in the “Hangout with [j]...b” portion of the document, P.V. frequently passes on messages from J.V., but I do not have enough evidence for a secure finding that this was a joint communication. [ 44 ] It is clear from the context that the first two March 8, 2014 1:37 a.m. messages were sent by P.V. I accept that J.V. sent the last of the three messages recorded at that time. The conversation that occurred on March 8, 2014 at 9:30 a.m. was between K.V. and P.V. [ 45 ] Exhibit “C” has therefore been admitted as exhibit 8 in the trial.

The messages from K.V.’s parents are admissible as admissions, only against the person making them, as described above. Released this 14 th day of July 2015, ____________________________ Justice David M. Paciocco