R. v. Nardi Date:, 2012 BCPC 318

Citation: R. v. Nardi Date: 20120329 2012 BCPC 0318 File No: 55759-1 Registry: North Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. BRIAN ANTHONY NARDI EXCERPTS FROM PROCEEDINGS RULING ON VOIR DIRE REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE J. CHALLENGER Counsel for the Crown: J. Verrier Counsel for the Defendant: D. Hopkins Place of Hearing: North Vancouver , B.C.

Date of Judgment: March 29, 2012 [ 1 ] THE COURT: This is my ruling on a voir dire respecting the admissibility of electronic documents. Mr. Nardi is charged with possessing a stolen laptop computer on August 5th, 2010, in West Vancouver. The laptop was stolen during a residential break and enter which occurred that day. The laptop was a new MacBook Pro 17 with a value of just over $3,000 including tax. [ 2 ] The Crown called one witness on the voir dire who was the property owner.

In his evidence, he described himself as a "bit of tech nerd." He is a medical doctor by profession and was an impressive and reliable witness. He testified about buying the computer and identified the receipt. There is no issue about that document. [ 3 ] Once he had the computer at home, he downloaded some security software [named "Undercover"] produced by a company called Orbicule. The first document in question is marketing information from the Orbicule website. It describes how the software works. [ 4 ] The complainant also testified as to what happened after he reported his laptop stolen to Orbicule.

The product appears to have performed as described. If your laptop is stolen, this software will provide screenshots and photographs of any user who operates the computer. It identifies the IP address being used. [ 5 ] It will also provide you with the location of your computer on a longitudinal/latitudinal coordinate basis to within 10 to 20 metres. If you click on that information, a Google Earth map will pin the exact location of your computer.

It also allows for the computer to be disenabled completely. [ 6 ] The complainant said that he followed the instructions and opened a user account in his dog's name which did not require a password so that anyone who tried to use the computer would be able to do so which then allows the Undercover software to function.

After his computer was stolen, he contacted Orbicule and accessed his account with them. [ 7 ] He was then sent two emails; the first acknowledges his theft report and the second advises him that the computer is being used and that he will now be getting screenshots and photographs at certain intervals as well as the IP address and location information. He then began receiving this information and continued to get this information for some days until he decided to deactivate the computer. [ 8 ] The first few screenshots were of various YouTube music videos.

The person using the computer then began researching the Undercover software and getting information about changing users, et cetera, for a MacBook Pro 17. There are a number of very clear close-up photographs of a person who appears to be looking at the screen of the computer. The last photograph was taken August 5th at 17:41.

After that, the photos are blank and the complainant says he believes the camera lens had been obscured. [ 9 ] The complainant printed off everything from his Orbicule account and some other documents from "Safari" and it is those documents as well as the marketing material and emails which the Crown seeks to have admitted. The evidence is essential to the Crown's case. [ 10 ] The Crown asked the court to admit these documents on various grounds. The first was under the provisions of s. 30 of the Canada Evidence Act . The second is an exception to the common law hearsay rule.

The third is as direct evidence as they were entirely "mechanically created" without human intervention. [ 11 ] I must also consider the provisions of s. 31.1 to 31.8 of the Canada Evidence Act which deal with the authentication of electronic documents. For clarity, these provisions are set out below: 30(1)Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this

section in the legal proceeding on production of the record. ...

(6) For the purpose of determining whether any provision of this

section applies, or for the purpose of determining the probative value, if any, to be given to information contained in any record admitted in evidence under this section, the court may, on production of any record, examine the record, admit any evidence in respect thereof given orally or by affidavit including evidence as to the circumstances in which the information contained in the record was written, recorded, stored or reproduced, and draw any reasonable inference from the form or content of the record. ...

(12) In this section, “business” means any business, profession, trade, calling, manufacture or undertaking of any kind carried on in Canada or elsewhere whether for profit or otherwise, including any activity or operation carried on or performed in Canada or elsewhere by any government, by any department, branch, board, commission or agency of any government, by any court or other tribunal or by any other body or authority performing a function of government ... 31.1 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. 31.2(1)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.

(2) 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. 31.3 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; (

b) if it is established that the electronic document was recorded or stored by a party who is adverse in interest to the party seeking to introduce it; or (

c) if it is established that the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party and who did not record or store it under the control of the party seeking to introduce it. 31.4 The Governor in Council may make regulations establishing evidentiary presumptions in relation to electronic documents signed with secure electronic signatures, including regulations respecting (

a) the association of secure electronic signatures with persons; and (

b) the integrity of information contained in electronic documents signed with secure electronic signatures. 31.5 For the purpose of determining under any rule of law whether an electronic document is admissible, evidence may be presented in respect of any standard, procedure, usage or practice concerning the manner in which electronic documents are to be recorded or stored, having regard to the type of business, enterprise or endeavour that used, recorded or stored the electronic document and the nature and purpose of the electronic document. 31.6 The matters referred to in subsection 31.2(2) and sections 31.3 and 31.5 and in regulations made under

section 31.4 may be established by affidavit.

(2) A party may cross-examine a deponent of an affidavit referred to in subsection (1) that has been introduced in evidence (

a) as of right, if the deponent is an adverse party or is under the control of an adverse party; and (

b) with leave of the court, in the case of any other deponent. 31.7 Sections 31.1 to 31.4 do not affect any rule of law relating to the admissibility of evidence, except the rules relating to authentication and best evidence. 31.8 The

definitions in this

section apply in sections 31.1 to 31.6. “computer system” means a device that, or a group of interconnected or related devices one or more of which, (

a) contains computer programs or other data; and (

b) pursuant to computer programs, performs logic and control, and may perform any other function. “data” means representations of information or of concepts, in any form. “electronic document” means data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device. It includes a display, printout or other output of that

data. “electronic documents system” includes a computer system or other similar device by or in which data is recorded or stored and anyprocedures related to the recording or storage of electronic documents. “secure electronic signature” means a secure electronic signature as defined in subsection 31(1) of the Personal Information Protectionand Electronic Documents Act. [12] I will first observe that I have no general knowledge of the reliability of Orbicule as a service provider or the reliability oraccuracy of their Undercover software.

Their product is one which is novel to the court. [13] A number of cases were argued which dealt with the admissibility and reliability of telephone records. In those cases, thecourts were able to rely on the inherent circumstantial guarantee of accuracy of documents relied upon in the day-to-day affairs of thecellular or landline service providers. I find that in this matter I am not able to do so as I am unaware if Orbicule relies on thescreenshots, photographs, or location information generated for their subscribers in the day-to-day running of its business; see R. v. Hall,[1998] B.C.J.

No. 2515 (B.C.S.C.) at paragraphs 53 to 64. [14] I find I must reject the submission that these documents can be admitted pursuant to s. 30 of the Canada Evidence Act. There isinsufficient evidence that these documents fall within the definition of "business records" as set out in s. 30. There is also insufficientevidence that these records are kept in the usual and ordinary course of business of Orbicule as required by s. 30(1). There is also noevidence that Orbicule's business is carried out in Canada.

Although a commonsense inference in these respects might be reasonable, itwould nevertheless involve supposition by the court. [15] Pursuant to s. 30(6), it was open to the Crown to provide an affidavit attesting to these matters. Furthermore, the Crown did notserve notice of their intention to rely on s. 30 and thus the defence has been placed in a position where they do not have the opportunityto cross-examine a representative of Orbicule as to the reliability of the software; see R. v.

Bellingham, 2002 ABPC 41, [16] I will next deal with those documents which would be considered to be hearsay as opposed to those which are solely computer-generated without human intervention. The marketing materials I find to be hearsay and thus their admissibility needs to be analysedunder the principled exception to the hearsay rule. I am assuming that a human being generated the email responses, but there is noevidence either way.

In this context, reliability should be assessed by focusing on the circumstances in which information wasgenerated, recorded, stored, and reproduced. [17] The reliability of the information in the marketing material is generally supported by the software apparently functioning as wasdescribed therein. This is also true of the emails. However, this is as far as the Crown evidence goes. There is nothing on thescreenshots or photographs to establish that the computer being used was that belonging to the complainant.

This is assumed, but notproven in any way. [18] The complainant testified that he downloaded the screenshots, photos, and location information directly from his account withOrbicule. None of these documents contain any information as to which computer is being used. It is only the documents from "Safari"which show information on the screen to establish that it is the complainant's computer. It would appear that these records are from thecomplainant's Orbicule account, but that is not what he testified to.

There is nothing before the court to establish that the documentsobtained from "Safari" are reliable as there is insufficient evidence to link them to the complainant's Orbicule account. [19] As to necessity, these documents are necessary to prove certain facts in the Crown's case. As opposed to information whichcould not be attested to as having been entirely computer generated, evidence that the software was functioning properly andconfirmation that the screenshots and photos came from the complainant's computer could be testified to by a human being.

It was opento the Crown to file an affidavit from a representative of Orbicule to attest to these issues and there is nothing before me to support thatthis could not have been done. Thus, the Crown has not established the necessity for these documents to be admitted as hearsay. [20] For these reasons, I find that the documents cannot be admitted under the principled exception to the hearsay rule. [21] I turn now to consider whether the screenshots, photographs, and location information records can be admitted as realevidence. In R. v. McCulloch, [1992] B.C.J.

No. 2282 (B.C.P.C.), the court was again dealing with the admissibility of telephonerecords. At paragraph 18, the court said: Where evidence is automatically recorded by any means, other than by human labour, and the evidence so recorded can be reproduced inany form, intelligible to the human mind, the reproduction is admissible as real evidence. The recording may be mechanical, chemical,electronic, photographic, or auditory, to name a few examples, and the reproduction may be by computer printout, audiovisual playback,photographs, or other means.

The weight to be attached to such evidence will depend on the accuracy and integrity of the processemployed. [22] I infer from the evidence and my general knowledge of Wi-Fi technology and computers that the screenshots, photographs, andlocation information were entirely computer generated and thus fall within the category of direct evidence identified in McCulloch.

Theyare prima facie admissible at common law and any issues with respect to reliability go to the weight to be ascribed to them. [23] Defence counsel argues that the Crown must comply with ss. 30.1 to 30.8 of the Canada Evidence Act respecting theauthentication of electronic documents and application of the best evidence rule in order for these records to be admitted. The Crownsays that the court need not consider these provisions if it finds, as I have, that the evidence is real evidence.

[ 24 ] In R. v. Morgan , [2002] N.J. No. 15 (N.L.P.C.) at paragraphs 20 to 27 , the court considered these provisions in the context of the admissibility of an electronically-recorded fishing licence and its attached conditions and schedules. The Crown in that matter called a Fisheries officer who produced affidavits from an administrator which referenced s. 30 and ss. 31 to 31.3 of the Canada Evidence Act and which were found to satisfy the evidentiary matters referred to in those provisions.

The court found that those provisions apply only if the evidence is otherwise admissible. [ 25 ] I find that the Crown must meet the criteria set out in these sections in order to support a finding that the electronic records are authentic and the "best evidence" of the information contained therein. In my view, the Crown cannot simply look to the documents themselves, in the absence of any other indicia of authenticity or inherent circumstantial guarantees of trustworthiness, to meet the burden set out in s. 31.1.

This is especially so when considering information generated from a novel "system." [ 26 ] As to establishing that the documents constitute the "best evidence," I find it to be axiomatic that there must be evidence outside of the documents themselves to prove the integrity of the "electronic document system," or that the document has been "manifestly or consistently acted on, relied on, or used as a record of the information recorded or stored in the printout," or that "computer system was operating properly," or that the information was "recorded or stored in the usual and ordinary course of business." It is open to the Crown to obtain affidavit evidence in order to facilitate the proof of these matters. [ 27 ] I find that the Crown has failed to establish that these records are authentic and the best evidence available.

Thus, the screenshots, photographs, and location information are not admissible. [ 28 ] MS. VERRIER: In that case, Your Honour, the Crown will be calling no further evidence. [ 29 ] MR. HOPKINS: I will be asking Your Honour to acquit. [ 30 ] THE COURT: Yes, I will acquit Mr. Nardi of the charge before the court. [RULING ON VOIR DIRE AND REASONS FOR JUDGMENT CONCLUDED]