R. v. S-Q., 2023 ONCJ 415

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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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. ONTARIO COURT OF JUSTICE CITATION: R. v. S-Q. , 2023 ONCJ 415 DATE: 2023 09 29 COURT FILE: Toronto, # 22-99870000224 BETWEEN: HIS MAJESTY THE KING — AND — J. S-Q.

Before Justice B. Jones Heard on July 7, 2023 Ruling On The Admissibility Of Apple Watch Data Ms. A. Nagra........................................................................................ counsel for the Crown Ms. V. Mistry.................................................................................................... counsel for S-Q. Jones J.: Introduction [ 1 ] Mr. J. S-Q. is charged with sexual assault.

His trial commenced on July 7, 2023 and is scheduled to continue on November 9, 2023. [ 2 ] On the first day of his trial I made an oral ruling about the admissibility of the complainant’s Apple Watch data. There are my written reasons. Background Facts [ 3 ] E.A. is 29 years old. In 2022 she worked as a child, youth and family counsellor for children with incarcerated parents. Through that position, she met J. S-Q., who was a volunteer with her organization. [ 4 ] On January 29, 2022, she had her friend K. over at approximately 10 p.m. at her apartment. She had known K. for about a year. They drank wine.

She enjoyed catching up with her friend after a difficult week. [ 5 ] They posted on Snapchat to some people about what they were doing. J. S-Q. was friends with her on Snapchat (and other social media apps). Through this account, they invited him over to Ms. E.A.’s apartment. [ 6 ] He arrived after midnight. They sat in the living room for some time. She believed she consumed approximately two bottles of wine in total. She then went to bed, as she felt intoxicated and tired. [ 7 ] She remembered waking up several hours later and J. S-Q. was on top of her in her bed. He was having sexual intercourse with her.

She was lying on her back and was not wearing any clothes. She had gone to sleep with clothing on and did not know how her clothing had been removed. [ 8 ] She did not consent to any sexual activity with J. S-Q. Admissibility of Apple Watch Data [ 9 ] Ms. E.A. testified that while she could not remember precisely when she fell asleep and later awoke to find J. S-Q. sexually assaulting her, she checked her Apple Watch which provided her with that information. The watch recorded her daily activity and tracked her sleep.

She testified that the watch recorded she went to sleep between 2:30 a.m. and 3:00 a.m. [ 10 ] Ms. Mistry objected to the admission of this evidence. In her submission, an expert witness was required to testify and interpret this data and to provide an opinion on its accuracy. [ 11 ] Data that is automatically created by a personal electronic device as a result of its standard functioning is not a form of hearsay. This data is properly characterized as computer by-product evidence. It does not generally require an expert witness to testify and explain its meaning.

This contrasts with any form of data that has been inputted by a human user, which would typically constitute a form of hearsay. [ 12 ] In R. v. Ball , 2019 BCCA 32 , the British Columbia Court of Appeal drew an important distinction between the human generated content of Facebook messages tendered as part of the Crown’s case and the computer by-product data associated with them. The Court held at para. 69: “ Computer by-product evidence” of this kind is original or real evidence, not hearsay. Depending on the circumstances, expert evidence

may be required to explain the meaning of the computer-generated information or the accuracy or reliability of the generating technology, although, in the absence of cause for doubt, circumstantial evidence or lay witness testimony is often sufficient.

Regardless, expert evidence is not required to explain generally how commonplace technologies such as Facebook, text messaging or email operate if a lay witness familiar with their use can give such testimony… [ 13 ] In that case, the time and date stamps associated with a Facebook timeline were given as an example of “by product” evidence: see para. 77. [ 14 ] In R. v. Hogan , 2022 ABCA 5 , the Alberta Court of Appeal held that GPS location data derived from a smartphone was admissible as computer by-product evidence.

The Court held that smart telephones are “now sufficiently ubiquitous that, in the absence of a specific objection, trial judges are entitled to take notice of their capabilities and the reliability of the information they generate”: see para. 10. The Ontario Superior Court of Justice came to the same conclusion in R. v. Snache , 2023 ONSC 2255 , at paras. 299-330 . [ 15 ] I conclude that data created by an Apple Watch, including data that indicates when its wearer goes to sleep or awakes, is similarly admissible without the need for expert testimony.

Apple Watches or personal fitness trackers that measure and record data about a wearer’s physical condition (sometimes referred to as “health data”, including “sleep-tracking data”) are commonplace. The weight to be attached to any computer-generated by-product evidence introduced through such a device remains for the trier of fact to determine based on how the evidence is presented. [ 16 ] Ms. Mistry cautioned me that Ms. E.A. was unable to provide a specific time that she recalled from her Apple Watch about when she went to sleep, and instead gave only a rather vague estimate of about half an hour.

This calls into question the reliability and accuracy of her evidence. I nevertheless find that Ms. E.A.’s testimony sufficiently authenticated the data from her Apple Watch to meet the standard required by

section 31.1 of the Canada Evidence Act . That

section requires the party seeking to introduce electronic evidence to satisfy the court of its authenticity by evidence “capable of supporting a finding that the electronic document is that which it is purported to be.” It is a “modest threshold”: see R v C.B. , 2019 ONCA 380 , at para. 68 . [ 17 ] I agree that Ms. E.A. was somewhat equivocal about the times she recalled her watch indicated she fell asleep and later awoke. Yet her testimony about her Apple Watch data provides some evidence about the timing of the events that occurred on the night in question.

Given that this timeline of events is not seriously in dispute in this trial, I do not anticipate that anything crucial turns on the frailties in Ms. E.A.’s evidence identified by Ms. Mistry. [ 18 ] Regardless, the ultimate weight to be attached to this evidence will be determined at the conclusion of the trial. Released: September 29, 2023 Signed: Justice Brock Jones