R. v. Sampson, 2020 BCPC 27

Citation: R. v. Sampson 2020 BCPC 27 Date: 20200131 File No: 40826-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. WILLIS ANDREW MITCHELL FRANKLYN ISAAC SAMPSON JONATHAN EDWARD ANDREW SAMPSON ORAL REASONS FOR JUDGMENT (RE THE ACCUSED JONATHAN EDWARD ANDREW SAMPSON) OF THE HONOURABLE JUDGE L. MROZINSKI Counsel for the Crown: J. Blackman Counsel for the Attorney General of BC: H. Gwillim Counsel for the Accused: J . Recalma Place of Hearing: Duncan, BC Dates of Hearing: August 21 and 22, 2019

Date of Judgment: January 31, 2020 A Corrigendum was released by the Court on April 21, 2020. The corrections have been made to the text and the Corrigendum is appended to this document. [ 1 ] THE COURT: Jonathan Sampson is charged with hunting wildlife, namely Roosevelt elk, near Cowichan Lake, British Columbia, on or about October 14, 2016, at a time not within open season, contrary to s. 26(1) (

c) of the Wildlife Act , R.S.B.C. 1996, c. 488 , which I will refer to hereafter as the Wildlife Act . [ 2 ] The Crown charges as well that Mr. Sampson was in possession of dead wildlife, namely Roosevelt elk, without authorization, contrary to s. 33(2) of the Wildlife Act . [ 3 ] Mr. Sampson pleads not guilty to both charges. [ 4 ] The bulk of the Crown's case against Mr. Sampson is circumstantial. The Crown's case consists of a series of circumstances that together, it submits, point to Mr.

Sampson as a person who both hunted Roosevelt elk at a time not in open season, and possessed some or parts of dead Roosevelt elk without authorization. I am mindful in this case that Mr. Sampson can only be found guilty if the evidence is consistent with his guilt and inconsistent with any other rational conclusion. [ 5 ] A significant issue in this case is one of identity, though there are issues around other elements of the charged offences, including whether the Crown has proven the charge of hunting.

The question of identity turns fundamentally on the admissibility of Facebook posts that the Crown alleges show Mr. Sampson in possession of dead Roosevelt elk on October 14, 2016, accompanied by what the Crown submits are admissions by Mr. Sampson of having killed two such animals. [ 6 ] The admissibility of these Facebook posts is the subject of a voir dire , and I will address that issue in these reasons. [ 7 ] As Crown submitted in its closing submissions, there seems to be little disagreement, possibly even a concession, on the elements of the date of these alleged offences, as well as jurisdiction.

Assuming the other elements are proven, the date is easily proven, as is jurisdiction, assuming what the Crown means by that is these offences occurred, if they are found to have occurred at all, in or around Lake Cowichan in the Province of British Columbia. [ 8 ] In Mr.

Sampson’s closing submissions, a distinction was drawn between a concession on jurisdiction, as I have just described it, and the jurisdiction of the Province to regulate a treaty right to hunt. [ 9 ] Before this trial, the parties agreed to approach this matter in two stages -- first, the trial on the offences, and secondly, if need be, a hearing on the applicability of the Wildlife Act to the exercise of a treaty right to hunt.

In this stage, jurisdiction is intended to refer only to the province and place in which the alleged offences are said to have occurred. [ 10 ] At this time, the issue before me is whether the Crown has proven Mr. Sampson’s guilt beyond a reasonable doubt. Mr. Sampson gave no evidence in this proceeding, including in the voir dire . As such, it is a question of determining the case based on the evidence adduced solely by the Crown. [ 11 ]

Section 2 of the Wildlife Act provides ownership in all wildlife in British Columbia is vested in the government. Assuming the Act applies, no person in British Columbia may lawfully kill or possess dead wildlife except in accordance with the provisions of the Wildlife Act and Regulations. [ 12 ] Mr. Sampson is charged, as I have noted, with two offences under the Wildlife Act . The first is hunting outside of open season contrary to s. 26(1). For ease of reference, s. 26(1) provides as follows:

(1) A person commits an offence if the person hunts, takes, traps, wounds or kills wildlife (

a) that is an endangered species or threatened species, (

b) in a wildlife sanctuary, (

c) at a time not within the open season, (

d) with a firearm or a bow during the prohibited hours, (

e) by the use or with the aid of a light or illuminating device, (

f) with poison, (

g) with a set gun, or (

h) with a pump, repeating or auto loading shotgun unless the magazine contains a plug that is incapable of removal except by disassembling the gun, and that makes the magazine incapable of holding more than 2 cartridges. (2) Subsection (1)(c), (d), (

e) and (

h) does not apply to a person who hunts or traps wildlife that is on the person's property and is a menace to a domestic animal or bird. [ 13 ] Open season is defined by various provisions of the Wildlife Act and Regulations, two of which are applicable in this prosecution.

[ 14 ] First, the term "open season" is defined in s. 1 of the Wildlife Act to mean, "a specified period of time during which a species of wildlife may be hunted or taken". Open season in the Wildlife Act can refer to both time and place. [ 15 ] For the purposes of s. 26(1)(

c) of the Act ,

Schedule 3 of the Closed Areas Regulation , B.C. Reg. 239/2018 sets out areas designated as no shooting areas in which there is no open season for any wildlife species, save for some trapping exceptions. [ 16 ] The open season for the hunting of each of the species and types of animals for which a person may obtain authorization to hunt is set out in s. 4 of the Wildlife Act , Hunting Regulation, B.C. Reg. 2000/2016. The wildlife available for hunting on Vancouver Island is listed in

Schedule 1 of the Regulations. Roosevelt elk are not included. Nothing in the Wildlife Act or its regulations authorizes the hunting of these animals. [ 17 ] For those persons to whom the Wildlife Act applies, there is no open season for the hunting of Roosevelt elk on Vancouver Island. [ 18 ] In this case, the Crown submits that two Roosevelt elk were hunted by persons, including Mr. Sampson, in a no shooting zone just off the North Shore Road, close to Roberts Road in the Lake Cowichan area. [ 19 ] On October 14, 2016, Mr.

Lee Cameron, a local resident, was travelling along the North Shore Road, returning from a day of quading. The date stuck in his mind for one particular reason, and that was that it was his birthday. [ 20 ] On that day, around 3:45 p.m., Mr. Cameron was driving along the North Shore Road heading towards Lake Cowichan, when he came up behind a white Chevrolet pickup truck with a canopy on the back, but no canopy window. Mr. Cameron, who I accept is an avid hunter, saw a bull elk in the back.

As a hunter he was firstly surprised to see the animal, knowing the area was a limited entry hunting zone, but at the same time excited. He hoped and expected the driver would pull over and let him look at the animal, as he testified hunters will happily do for one another. [ 21 ] In this instance, as Mr. Cameron pulled alongside the white truck, the behaviour of the occupants struck him as odd. They did not, as he expected, wave or acknowledge him. Mr. Cameron pulled over in front of the truck, expecting they would stop. The driver did not. Rather, Mr. Cameron testified, the driver quickly drove off. [ 22 ] Mr.

Cameron recalled seeing three fairly large men in the front cab of the truck. He had no difficulty seeing the bull elk in the back. He was, he testified, able to see the large rack on the animal and a large amount of fur. Both observations confirmed to his mind that he was looking at a large bull elk. [ 23 ] Because of the behaviour of the driver of the white truck, Mr. Cameron pulled up behind the vehicle again and followed it. In short order, he also contacted a conservation officer and relayed the location of the vehicle. [ 24 ] At some point, as both vehicles were stopped, Mr.

Cameron took the opportunity to take photographs of the white truck using his cell phone camera. Those photographs, entered into this trial as evidence, show firstly the white truck pulled over on the side of the road, as Mr. Cameron testified. Other photos show the back of the vehicle where dents are obvious and where the licence plate is clearly shown. [ 25 ] Mr. Cameron testified that one photograph, photograph 2 of Exhibit 4, shows the large bull elk resting partway out of the back of the truck. Mr. Sampson submits the photograph is less than clear, and I agree.

However I am satisfied, based on the testimony of Mr. Cameron, which evidence was lightly probed on cross-examination, that Mr. Cameron was in a position to see what he testified to seeing. I am satisfied, based on his evidence, that Mr. Cameron had the knowledge and was able to identify the animal he saw as a large bull elk. Mr. Cameron gave his evidence in a clear and forthright manner. He was consistent on both direct and cross-examination. He made no attempt at evasion. His recollection of the date is entirely credible and reliable, given the significance of the date.

Nonetheless, given that he had spoken to the conservation office by phone, it would have been easy to confirm that date of his observations in any event. [ 26 ] Based on the evidence of Mr. Cameron, I find that, on October 14, 2016, at around 3:45 p.m., a large bull elk was dead and present in the back of a white truck which I accept, based on the unchallenged evidence of Conservation Officer Kissinger, was registered in the name of the defendant, Jonathan Sampson. [ 27 ] Larry Williams is a resident of the Roberts Road subdivision located just outside Youbou.

Roberts Road connects to the North Shore Road at a point which parallels the no-hunting zone. That zone is shown in Exhibit 2. [ 28 ] Mr. Williams has a keen interest in wildlife, of that there is no doubt. As he and his neighbour, Mr. James Cook, testified, Mr. Williams is a member of the Valley Fish and Game Wilderness Watch Program. Among other things, members of this organization collect information on and watch for poachers. As such, members such as Mr. Williams are often keenly aware of the presence of wildlife. [ 29 ] In the week or so leading up to October 14, 2016, Mr.

Williams testified that he saw a five-point bull elk in the neighbourhood. He did not see one after October 14, the day he found the stomach or gut bag of an elk in the no-shooting zone just off the North Shore Road near the Roberts Road junction. [ 30 ] Mr. Williams did not find this gut bag by accident. Earlier that day, his neighbour, Mr. Cook, was driving home on the North Shore Road when he saw what looked like a couple of men in the bush near Roberts Road chopping something. He saw a white truck on the side of the road and one person standing by the truck.

He testified he could tell they were all indigenous men. Mr. James formed the belief that the men were poachers and alerted Mr. Williams as quickly as he could. [ 31 ] Mr. Williams had been on the North Shore Road earlier, around 1:45 p.m. At that time, he saw a white truck parked on the side of the road near the Roberts Road turnoff. He testified to seeing a dent in the back of the truck. No one was present near the truck and Mr. Williams assumed that they were perhaps picking mushrooms. He came back home around 3 p.m. and saw the same truck had

moved and was parked near a gate designed to prevent vehicles from driving into what was then a bush area. [ 32 ] Later that same evening, Mr. Williams walked the bush area with his neighbour and came upon the gut bag. He estimated it was approximately 200 feet from the road. The next day, he went back into the area and found the remains of what he believed was another elk. Both remains were found in the no-shooting zone marked in Exhibit 4. [ 33 ] Mr.

Williams called Conservation Officer Kissinger on the morning of October 15, 2016, to report his finding in the bush just off the North Shore Road in the no-shooting zone. CO Kissinger investigated that day. [ 34 ] Based on the information provided by Mr. Williams, CO Kissinger went to where the truck was said to have been parked. He and a fellow officer followed what he described as a trail, and came upon blood and then the gut content, and then the genitalia of a bull elk.

A short distance later, along a trail with markings on the forest floor consistent with something heavy having been dragged along, CO Kissinger found the remains of a lung he is convinced is an elk lung. He also discovered elk hair in places where the moss was disturbed. Photos of these remains and their location are in evidence in Exhibit 6. [ 35 ] As CO Kissinger testified, the remains were fresh. They were, he testified, still wet to the touch and had a smell of freshness.

No flies or fly larva were present, as could be expected from older remains. [ 36 ] Based on the state of the remains and the drag marks, CO Kissinger testified it was his experience this was likely consistent with field dressing -- that is to say that the animal was killed, stripped of his stomach and other organs to cool the meat down, and then removed otherwise in whole from the area. [ 37 ] CO Kissinger testified to finding a second so-called kill side about 17 metres east of the first, almost parallel to the forest. At this site, the officers found the body cavity and ribs of an elk.

He adjudged it was a slightly smaller bull elk that had been quartered. [ 38 ] CO Kissinger testified to finding what he characterized as a trail where people had gone from site 2, the second kill site, to site 1. All of the drag marks were from the elk to the road. CO Kissinger testified he found no evidence of an animal shot somewhere else that had stumbled into the two sites, though he looked for such evidence. [ 39 ] CO Kissinger formed the opinion that the remains he found at both sites were the remains of two male elk based on a number of factors.

First, the general and large size of the gut pile was consistent with a large animal such as an elk. The hide and hair was consistent with an elk. The genitalia found at the first sight was also consistent with a male elk. The stomach contents and the lung found along the trail amid the drag marks were also, in his view, consistent with elk. [ 40 ] At the second site, the body cavity provided ample material for CO Kissinger to determine the animal that was quartered was a bull elk. Though he found no genitalia, CO Kissinger concluded from the colour and length of the further that it was a male.

The fact the head had been removed also suggested a male as typically only males have their heads removed for obvious reasons. [ 41 ] The Crown entered photographs of each of the sites along with photographs of the animal remains. They appear, as CO Kissinger testified, to be fresh. I accept there is no evidence of scavengers being present, nothing that could explain the presence of so large a set of remains, particularly at the second so-called kill site.

Measurements were taken by the conservation officers at these two sites and the surrounding area leading to the North Shore Road, both on October 15 and again on October 18. [ 42 ] Aside from the animal remains appearing greyer, CO Kissinger testified that they were situated where the officers left them days earlier. There was still no sign of scavenging of the remains. [ 43 ] Photographs entered into evidence, particularly photograph 16 of Exhibit 6, shows what appears to be and what CO Kissinger believes to be an entry point of an arrow tip.

CO Kissinger testified, in his view, this is the weapon that killed the animal at the second kill site. It was also at that site that CO Kissinger found a large amount of blood, indicating the bleeding occurred while the animal was alive and dying. [ 44 ] While there is no real evidence to indicate the two elk were killed at the two sites where the animal remains were found, I am satisfied on the evidence before me firstly that at least one of the two animals died at what CO Kissinger described as kill site 2.

Although CO Kissinger looked, he found nothing to indicate either animal had been killed anywhere further off the road than where their remains were found.

I find I agree with the Crown that, despite the absence of real evidence indicating where these two animals were killed, it makes no sense that the person or persons who hunted these animals would carry such a large and heavy animal from where they died only to field dress one animal and quarter another at two different sites within the no-hunting zones. [ 45 ] All of the evidence before me points to one logical conclusion, and that is that these two animals were killed in the immediate area where the remains were left and dragged onto the road as evidenced by the drag marks.

Whoever hunted and killed these two animals did so in a no-hunting zone. [ 46 ] In addition, I am satisfied on the evidence of CO Kissinger that these animals are Roosevelt elk. As the Crown emphasizes in its closing submission, the defendant has not challenged that fact. [ 47 ] The primary issue in this case, as I have noted, is identification. Has the Crown proven beyond a reasonable doubt that the defendant, Jonathan Sampson, hunted for Roosevelt elk in a no hunting zone and was subsequently in possession of such an animal without lawful authority.

I pause here to note of course that at this stage there is a presumption that the Wildlife Act applies to the defendant. [ 48 ] The evidence linking Mr. Sampson to these offences starts with the evidence of Mr. Cameron who, on October 14, 2016, photographed a white truck with a canopy on the back, inside of which was, I find, a large bull elk. One of Mr. Cameron’s photographs shows the vehicle's licence plate number and, as the registered owner, Mr. Sampson was quickly identified as a suspect, although the witnesses all testified to seeing three males, either in or around the truck.

Each were identified by some witnesses as indigenous males.

[ 49 ] Using information given to him concerning the identity of the registered owner of the white truck seen near the two kill sites, and later bearing the dead body of a large bull elk, CO Kissinger conducted a Facebook search for Jonathan Sampson. He found such a Facebook account and determined it was open to the public. [ 50 ] More importantly, for the purposes of his investigation, CO Kissinger noted that posted on Mr. Sampson’s Facebook page were several photographs and accompanying comments. The Crown submits that the photographs and comments are relevant to this prosecution in that they link Mr.

Sampson to the dead animals and contain, in the Crown's submission, an admission by Mr. Sampson of having hunted the elk in question. [ 51 ] In this trial, the Crown seeks to enter copies of the photographs and the words seen by CO Kissinger on what he believed was the defendant Jonathan Sampson’s Facebook page, as well as those images which were subsequently captured by Detective Vanderford. A voir dire was entered into to determine the admissibility of this evidence. [ 52 ] The Crown entered two exhibits in the voir dire .

Exhibit A contains screenshots of a Facebook page of what the Crown submits is the defendant Jonathan Sampson. The screenshots contained in Exhibit A contain a photograph of an individual CO Kissinger identified as the defendant Jonathan Sampson standing beside another male individual, behind a white truck bearing the last three digits of the licence number captured by Mr. Cameron as he followed a white truck carrying a dead bull elk on October 14, 2016.

I am left with no doubt that CO Kissinger has identified the defendant Jonathan Sampson as one of the two men in the photo I have just described. [ 53 ] In between Mr. Sampson and the other male is a dead bull elk. The two are holding the animal’s head aloft by its horns. It is a five-point elk. [ 54 ] During the voir dire , CO Kissinger identified the male beside Mr. Sampson as Franklyn Sampson, though that was not known to him when he first looked at Jonathan Sampson’s Facebook page. [ 55 ] Above the posted photograph, information appears.

It is the same information reproduced in the same image marked as Exhibit B in the voir dire and is simply an enlarged version of the captured data in Exhibit A. It says, “Jonathan Sampson added three new photos”. This is followed by a date, October 14, and a time, 7:17 p.m. Under that, is a comment that reads “good hunting today with the bros, Franklyn Sampson and Willis Mitchell”. Beneath this information are three photographs. The Crown submits these photos and comments were posted by Mr. Sampson on his own Facebook account. [ 56 ] CO Kissinger testified that once he identified Mr.

Sampson as a suspect, he logged onto Facebook using his own Facebook page. He did so using his office computer. He had no difficulty logging on to Mr. Sampson’s Facebook page, and he had no difficulty with his computer. It was, he testified, working properly. [ 57 ] CO Kissinger then referred the matter ultimately to conservation office Detective Bob Vanderford.

Detective Vanderford testified to receiving a request from the Duncan conservation office to do a Facebook search in regard to the office’s investigation into of a hunt of two elk out of season. [ 58 ] Detective Vanderford did a Facebook search for Jonathan Sampson and pulled up six results. Three of those persons spelled their names as the defendant here does, so the other three were eliminated. Only one of the Jonathan Sampsons was from Vancouver Island, and that is the Facebook account that Detective Vanderford examined. He testified to easily accessing Mr. Sampson’s Facebook account.

There were no privacy settings. Detective Vanderford testified that his computer was functioning properly at the time. [ 59 ] Scrolling through the Facebook account, Detective Vanderford came upon posts he deemed relevant to the investigation and, using screen capture software, captured the posts and comments associated with the posts, and then pasted the captured data into a Word document.

Detective Vanderford testified that images of Exhibits A and B of the voir dire are accurate images from his computer screen at the time those images were captured. [ 60 ] CO Kissinger also viewed Exhibits A and B and confirmed the images in both are the same images he saw on the Facebook page of Jonathan Sampson when he conducted his Facebook search on October 18, though in the case of Exhibit B, they were enlarged. [ 61 ] On cross-examination, both CO Kissinger and Detective Vanderford agreed that what they would also have seen on the Facebook page of Jonathan Sampson when each conducted their search was a banner along the top of the page, advertising and the Facebook logo.

They were not all included in the screen data that was captured and subsequently tendered as evidence in the voir dire . [ 62 ] At issue in this voir dire is whether the data and images shown in Exhibits A and B are admissible under the Canada Evidence Act . The parties agree that the documents the Crown proposes to enter as evidence in the trial which are the subject of the voir dire are electronic documents. [ 63 ] As the court held at paragraph 46 of in R. v. M.

Hines , 2016 ONSC 249 : The Canada Evidence Act defines an "electronic document" as "data that is recorded or stored on any medium in or by a computer system or other similar device" ... a copy of Facebook chats obtained by way of a "screen shot" from a person's personal computer is an electronic document within the meaning of the Canada Evidence Act . [ 64 ] Similarly, it must be that a screenshot of a Facebook post and comments also constitute electronic documents. Their admissibility is governed by ss. 31.1 to 31.3 of the Canada Evidence Act .

Those sections provide as follows. [ 65 ] First, 31.1 provides: Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purported to be.

[ 66 ]

Section 31.2(1) provides that: The best evidence rule in respect of an electronic document is satisfied (

a) on proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stored; or (

b) if an evidentiary presumption established under

section 31.4 applies. [ 67 ] Subsection 31.2(2) provides: Despite subsection (1), in the absence of evidence to the contrary, an electronic document in the form of a printout satisfies the best evidence rule if the printout has been manifestly or consistently acted on, relied on or used as a record of the information recorded or stored in the printout. [ 68 ] The relevant sections of 31.3 provide: For the purposes of subsection 31.2(1), in the absence of evidence to the contrary, the integrity of an electronic documents system by or in which an electronic document is recorded 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 the electronic documents system was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity of the electronic document and there are no other reasonable grounds to doubt the integrity of the electronic documents system; ... [ 69 ] As the party seeking to tender these electronic documents, the Crown firstly bears the burden of proving by evidence capable of supporting a finding that the electronic document is that which it is purported to be. [ 70 ] As Justice Butler writes at paragraphs 44 to 47 in R. v.

Hamdan , 2017 BCSC 676 , the threshold in s. 31.1 of the Canada Evidence Act is low. The party seeking to admit the electronic document does not need to prove that the electronic document is an exact and complete copy. [ 71 ] Justice Butler sets out the low standard at paragraph 45 of his reasons, quoting from the reasons of the court in R. v. Hirsch , 2017 SKCA 14 , at paragraph 18 as follows: [18] ...

Quite simply, to authenticate an electronic document, counsel could present it to a witness for identification and, presumably, the witness would articulate some basis for authenticating it as what it purported to be. ... The standard of proof required is the introduction of evidence capable of supporting a finding that the electronic document is as it claims to be. In essence, the threshold is met and admissibility achieved by the introduction of some evidence of authenticity. [ 72 ] In R. v.

Donaldson , 2016 CarswellOnt 21760 , Justice Paciocco, as he then was, writes at paragraph 25 that: In order to determine what needs to be authenticated, the purpose for which the evidence is presented has to be borne in mind. In this case, the Crown’s theory is that these were Facebook messages originating from Mr. Donaldson as a result of what must be authenticated in this case is that there is an evidentiary foundation upon which it could reasonably be inferred that the messages were sent by Mr. Donaldson. [ 73 ] It bears noting that in R. v.

Donaldson , the authenticity of the electronic documents was not established because of the tenuous connection between the Facebook messages and the accused. [ 74 ] In this instance, I find there is ample evidence on which the court could find the electronic documents in Exhibits A and B are what they purport to be, that is to say Facebook posts and comments from the Facebook account of the defendant Jonathan Sampson. The threshold is low. The Crown need only adduce some evidence of authenticity. That evidence includes the post on October 14, with the notation “good hunt today”, that being the day Mr.

Cameron saw the elk in the back of the truck registered to Mr. Sampson. [ 75 ] I agree with the Crown that the presence of Jonathan Sampson in the photograph on his Facebook page, behind his truck, posted again several days later as an update to his profile picture, all strongly point to Jonathan Sampson as the author of the comment and the poster of the photographs. [ 76 ] Other evidence to satisfy the test for authenticity includes the testimony of both CO Kissinger and Detective Vanderford that the images in Exhibits A and B are those that they saw when they viewed the Facebook account of Jonathan Sampson.

The images are not exact and do not include all of the information that would have been visible to a person logging onto Jonathan Sampson’s Facebook page that day; however, as Justice Butler writes in Hamdan , the electronic document need not be an exact or complete copy to pass the admissibility threshold. [ 77 ] It bears noting as well that, despite Justice Butler’s concerns regarding the integrity of the electronic documents in Hamdan , he was satisfied the Crown had met its burden to establish their authenticity. [ 78 ] Once the authenticity threshold was crossed, the court must determine whether the electronic documents meet the best evidence rule.

In R. v. Hirsch , the court describes the rule as it applies to electronic documents at paragraphs 22 and 23 as follows: [22] At common law, the best evidence rule requires the proponent of a record to produce the original record or the next best available record. However, the concept of an original is not readily applied to electronic documents. Further, due to the inherent nature of electronic documents, it is often impossible to provide direct evidence of the integrity of an electronic document sought to be adduced into evidence.

For this reason, the Canada Evidence Act dispenses with the common law requirement of an origina l record and substitutes other means of satisfying the purpose that underpins the best evidence rule. See, for example, the application of these

provisions in R. v Nde Soh , 2014 NBQB 20 . [23] The purpose of the best evidence rule is to assist the trier of fact with the verification of the integrity of documents because alterations are more readily detectible on original documents. Sections 31.2 to 31.6 of the Canada Evidence Act set out the means by which a party may prove the integrity of an electronic document. In simple terms, under that Act , the integrity of an electronic document is proven by establishing the integrity or reliability of the electronic document system in which it is recorded or stored.

That is, proof of electronic document system integrity is a substitute for proof of electronic document integrity . [ 79 ] Justice Butler writes at paragraph 70 of Hamdan that the presumption implicit in s. 31.2 of the Canada Evidence Act , as well as 31.3, " ... seek to ensure that the evidence the court receives is, functionally, the same as the information that went into the computer system". [ 80 ] At paragraph 77, Justice Butler writes that: The presumption of integrity that flows from a system “operating properly” is predicated on the assumption that the system, when working, could preserve the integrity of a document.

The statute allows for this inquiry by requiring that “there are no other reasonable grounds to doubt the integrity of the electronic documents system”. A system that does not preserve the integrity of a document, even if it is operating properly, cannot fall under this presumption. [ 81 ] I have quoted extensively around this passage as this is where the parties join issue on the admissibility of Exhibits A and B. Relying on the reasoning in Hamdan , Mr.

Sampson argues that the data captured and re-imaged in Exhibits A and B are incomplete and therefore inadmissible, that they do not contain an exact replication of all of the data available on Jonathan Sampson’s Facebook page on the day each looked at the account. What is missing is at least some of the advertising that is ever-present on Facebook, the banner at the top of the page, and Facebook’s own logo. [ 82 ] Some similar information is absent from the Facebook posts at issue in Hamdan , but in Hamdan , the issues run deeper.

In Hamdan , it was accepted that the documents at issue were captured in such a manner that parts of the pages that would have been visible to a Facebook viewer were covered up in the electronic documents. Many of the posts that could have been expanded and captured were not. Some of the text that could have been seen by a person viewing the page was not captured. [ 83 ] As the court notes at paragraph 84, many of the electronic documents were not in the same form as at the time of capture. Other concerns were raised around the failure of the RCMP to use software capable of capturing source code or metadata.

All such information was crucial as Mr. Hamdan was charged with counselling terrorism in various alleged Facebook postings. [ 84 ] Justice Butler appears to have accepted that the software used by RCMP in Hamdan to capture screenshots of the defendant’s Facebook page, Snagit and Awesome Screenshot, were not able to properly capture the whole of the scrolling page without reproducing the banner in places where it would not have appeared when the page was viewed live. In some instances, as I have noted, the software caused the banner artifacts to cover up portions of the text that would otherwise have been visible.

Additional problems not related to the software was the fact that the police did not expand posts by clicking on “see more” or "continue reading". [ 85 ] Apart from the missing banner at the top of the images reproduced in Exhibits A and B, the lack of advertising and Facebook logo on some of the images in those exhibits, there is no question here of the capturing of the data having potentially corrupted the information that was present for persons viewing Jonathan Sampson’s Facebook page at the material time.

The data captured does not show all of the data that would have been seen, but no case suggests that an electronic document must be an exact replica of a Facebook page at the moment of capture, to beat the best evidence rule under s. 31(2) of the Canada Evidence Act . [ 86 ] The court in Hamdan was concerned that the software used to capture data on Mr. Hamdan’s Facebook page, or the page police attributed to Mr. Hamdan at least, did not capture source code or metadata. [ 87 ] In many other cases, including those referred to in this voir dire , such as R. v. Soh , R. v. K.M. , 2016 NWTSC 36 , R. v.

Hirsch , and R. v. Himes , copies of Facebook chats are admitted under the Canada Evidence Act . There is nowhere a requirement for source code or metadata, or IP addresses, or even the usual Facebook advertising. It is moreover not clear in these cases that the court was viewing and entering anything other than the screenshots of chat lines. [ 88 ] I am satisfied that I am not bound by the findings in Hamdan to refuse to admit Exhibits A and B into evidence.

In many regards, Hamdan is distinguishable , one important distinction being that there is no sense that the data sought to be admitted to this voir dire has been corrupted, as was the case in Hamdan . The data here is incomplete in the sense that it does not include all advertising and so forth. Still, in Hamdan , Justice Butler cites authority for the proposition the electronic documents need not be complete. [ 89 ] The question of the integrity of an electronic document turns on whether the court can be satisfied on balance that the document provided to the court is the same one that was on the computer.

The document in this case is the post by the person the Crown submits is the defendant containing a photograph of the defendant with a deceased five-point elk, and posts attributed to the defendant which the Crown submits are admissions against interest. [ 90 ] On the evidence, the computers of both CO Kissinger and Detective Vanderford were working properly. They were, on the evidence, able to capture the data sought to be admitted. [ 91 ] Mr. Sampson notes that no efforts were made to determine whether his computer was working properly as the court suggested ought to be have been done in R. v.

Bernard , 2016 NSSC 358 . As Crown notes, s. 31.8 of the Canada Evidence Act does not require such a step. Additionally, the evidence in Bernard is quite distinct. There was in Bernard a serious question concerning the provenance of the Facebook posts that police and witnesses attributed to Mr. Bernard. [ 92 ] A similar submission is made regarding the absence of an IP address linking the posts to the defendant’s own Facebook account. This could be useful evidence, but the absence of the evidence does not render Exhibits A and B inadmissible.

[ 93 ] Moreover, as the court cautions in R. v. Soh at paragraph 36, even if the information was linked to a defendant’s Facebook account, that fact raises other questions, such as whether someone else was using the account at the material time or, as Mr. Sampson also notes, whether the account was somehow hacked or tampered with. In that regard, I accept the reasoning in R. v. K.M. , at paragraph 44 that, while tampering and hacking does happen, the mere possibility of it does not call into question the authenticity of an electronic document. [ 94 ] Here there is no evidence to the contrary.

There is no evidence of tampering or hacking -- nothing other than to point out such things occur. [ 95 ] In this voir dire , I find the Crown has met its burden to establish firstly some evidence that the electronic documents in Exhibits A and B are authentic and that it has established an evidentiary basis from which it is reasonable to infer the documents at issue were posted by and on Jonathan Sampson’s Facebook page.

Absent any evidence to the contrary, the burden is met. [ 96 ] As for the best evidence rule, I am satisfied on all of the evidence in the voir dire that the computers from which the data on Jonathan Sampson’s Facebook account was captured were operating properly. The data contained in Exhibits A and B meets the test for admissibility under s. 31.2 of the Canada Evidence Act . Exhibits A and B will be entered as evidence in this trial. [ 97 ] The question of admissibility under the Canada Evidence Act aside, Mr. Sampson objects to the admissibility of the comments posted under the photographs of Mr.

Sampson and another male. The posts are as follows. [ 98 ] First, above the photo posted on October 14 at 7:17 p.m. is the caption “good hunt today with the bros, Franklyn Sampson, Willis Mitchell". Under that post is a photo, as I have described, of Jonathan Sampson and another male identified in the voir dire by CO Kissinger as Franklyn Sampson. [ 99 ] At 7:40 p.m., under the comments section, it appears as if a Willis Mitchell has posted, "yeah bros, good job, nice crossbow, kills was fun". Other posts appear before a post by a Lucia Bartleman, asking “did you get two”.

The documents that indicate Jonathan Sampson replying at 8:28 p.m. on October 14 with the word “yep”. [ 100 ] On October 16 at 8:17 p.m., the electronic documents show Jonathan Sampson updated his profile picture with the photograph of himself and the male identified as Franklyn Sampson holding up the head of the deceased five-point elk at the back of the white truck.

I have in my reasons on the voir dire indicated I was satisfied the Crown had established an evidentiary basis from which it was reasonable to infer the photographs on Jonathan Sampson’s Facebook account were posted by Jonathan Sampson, and the comments attributable to him were similarly posted by him. [ 101 ] These images and this data are now evidence in this trial. There is no other evidence on which I could reasonably infer that the photographs were not posted by Jonathan Sampson, or that the comments that he appears to have entered onto his Facebook page were not his comments.

The evidence overwhelmingly satisfies me that they are. [ 102 ] The Crown submits the comments posted and attributed to Mr. Sampson are admissions against interest, and admissible as a traditional exception to the hearsay rule for out-of-court admissions by an accused. In R. v. Soh , the court cites R. v. Evans , [1993] 3 SCR 656 , in support of this.

There, at paragraph 24, Justice Sopinka distinguished between out-of-court statements which must be tested for reliability and trustworthiness and statements by an accused who is not in a position to challenge whether his or her own admissions are reliable. [ 103 ] That being the criteria for the admission of out-of-court statements, assuming they are relevant, out-of-court statements against admission by an accused do fall within an exception to the hearsay rule.

They are admissible subject to an objection by the party contesting their admissibility. [ 104 ] In this instance, there being no evidence to the contrary, and otherwise no objection, the statements I find that were posted by Mr.

Sampson on his Facebook page are admissible for their truth. [ 105 ] It remains to be determined, given all of the evidence admitted in the trial, whether the Crown has proven these offences beyond a reasonable doubt. [ 106 ] Count 5 of the Information in this case charges that Jonathan Sampson hunted Roosevelt elk at a time not within open season, contrary to s. 26(1) of the Wildlife Act . [ 107 ] I have already found that two Roosevelt elk were hunted in what is a no-hunting zone, off of the North Shore Road, on October 14, 2016.

On that same day, I am satisfied at least one five-point elk was seen in the back of Jonathan Sampson’s vehicle on the North Shore Road. I am also satisfied that later in that same day, Mr. Sampson posted a photograph of himself with a five-point elk in the back of that vehicle. Over the photo, I am satisfied Jonathan Sampson posted the words, "good hunt today with the bros”. [ 108 ] I am satisfied that at 8:28 p.m. on October 14, Mr. Sampson told Lucia Bartleman that he got two animals. I am left in no doubt, given the context of the exchange, that he is referring to two elk.

I am also satisfied that when Jonathan Sampson wrote “good hunt today with the bros” in the absence of any evidence to the contrary, that the statement is an admission that he was engaged in a hunt that day with his “bros”. [ 109 ] The evidence establishes beyond a reasonable doubt that on October 14, 2016, two elk were hunted in a no-hunting zone. If I look for that golden thread of circumstantial evidence tying Jonathan Sampson to the hunt, I find it present in this case based on all of the evidence. Moreover, I am satisfied on all the evidence that the elk killed were Roosevelt elk.

There is no open season on Vancouver Island for these animals. [ 110 ] In the result, I am satisfied beyond a reasonable doubt that Jonathan Sampson is guilty of the charge in Count 5.

[ 111 ] Count 6 charges that, on or about October 14, 2016, Jonathan Sampson possessed dead wildlife, namely Roosevelt elk, without authorization, licence or permit. The photographs entered into evidence from Jonathan Sampson’s Facebook establish possession beyond a reasonable doubt. [ 112 ] Mr. Sampson argues that even if the court accepts he was in possession of a dead elk, the Crown has failed to establish that there was no authorization or licence or permit. Mr. Sampson posits, it is possible the person shown in the photograph with him, or a third person, was authorized to hunt the elk.

However s. 98 of the Offence Act places an evidentiary burden on Mr. Sampson to establish that he was authorized to hunt and possess wildlife, either through his own authorization or the authorization of others. In the absence of any evidence to that effect, I find the Crown has proven Count 6 beyond a reasonable doubt. [ 113 ] As I understand it and having made these findings, the parties agree that it remains to be determined whether the Wildlife Act applies to Mr.

Jonathan Sampson. (REASONS CONCLUDED) CORRIGENDUM – Released April 21, 2020 In the Oral Reasons for Judgment dated January 31, 2020, the following changes have been made: [1] Paragraph 20 should read: On that day, around 3:45 p.m., Mr. Cameron was driving along the North Shore Road heading towards Lake Cowichan, when he came up behind a white Chevrolet pickup truck with a canopy on the back, but no canopy window. Mr. Cameron, who I accept is an avid hunter, saw a bull elk in the back.

As a hunter he was firstly surprised to see the animal, knowing the area was a limited entry hunting zone, but at the same time excited. He hoped and expected the driver would pull over and let him look at the animal, as he testified hunters will happily do for one another. [2] Paragraph 47 should read: The primary issue in this case, as I have noted, is identification. Has the Crown proven beyond a reasonable doubt that the defendant, Jonathan Sampson, hunted for Roosevelt elk in a no hunting zone and was subsequently in possession of such an animal without lawful authority.

I pause here to note of course that at this stage there is a presumption that the Wildlife Act applies to the defendant. [3] Paragraph 74 should read: In this instance, I find there is ample evidence on which the court could find the electronic documents in Exhibits A and B are what they purport to be, that is to say Facebook posts and comments from the Facebook account of the defendant Jonathan Sampson. The threshold is low. The Crown need only adduce some evidence of authenticity. That evidence includes the post on October 14, with the notation “good hunt today”, that being the day Mr.

Cameron saw the elk in the back of the truck registered to Mr. Sampson. [4] Paragraph 103 should read: That being the criteria for the admission of out-of-court statements, assuming they are relevant, out-of-court statements against admission by an accused do fall within an exception to the hearsay rule. They are admissible subject to an objection by the party contesting their admissibility. [5] The final line of the reasons should read: (REASONS CONCLUDED) _____________________________ The Honourable Judge L. Mrozinski Provincial Court of British Columbia