2023 QCCQ 5412, 2023 QCCQ 5412

R. c. Choi 2023 QCCQ 5412 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Criminal and Penal Division No: 500-01-216310-216 DATE: May 30, 2023 ______________________________________________________________________ BY THE HONOURABLE ANTOINE PICHÉ, J.C.Q. ______________________________________________________________________ HIS MAJESTY THE KING Prosecution v.

CHUL CHOI Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ INTRODUCTION [ 1 ] The accused is charged on a two (2) counts indictment for the following offences: 1. Between March 13, 2019 and July 23, 2019, in Montreal, district of Montreal, did act towards L. F., knowing that she is harassed, or being reckless as to whether she is harassed, did engage in a prohibited conduct referred to in the subsection 264(2) of the Criminal Code , causing L.

F. to reasonably fear for her safety, committing thereby the indictable offence provided by section 264(1) 3)

a) of the Criminal Code . 2. Between March 13, 2019, and July 23, 2019, in Montreal, district of Montreal, did, without lawful excuse and with intent to harass, caused repeated communication to be made to L. F. by means of telecommunication, committing thereby the indictable offence provided by section 372(3)

(4) a) of the Criminal Code . [ 2 ] The evidence against the accused is solely circumstantial. [ 3 ] The accused acknowledges that Miss F. has been subject to harassment and received repeated harassing communication. [ 4 ] This being said, the accused points out different weaknesses in the evidence presented by the prosecution and opines that this evidence is insufficient to establish that he is the perpetrator of those offences. FACTUAL OVERVIEW [ 5 ] The factual background is not really in dispute and can be summarized as follows. [ 6 ] In December 2018, the complainant, L.

F., began to receive anonymous calls during which a man simulated sexual activity. [ 7 ] When she did not answer the call, the caller left the same type of sounds on her voicemail. [ 8 ] Until the end of July 2019, the plaintiff received many calls as such, sometimes several times per day. All those calls were placed on her phone number provided by her employer, Deloitte. [ 9 ] In March 2019, she received a call from a man from restaurant MajesThé.

He said that he found a sticker with her phone number in the men’s restroom of the restaurant. [ 10 ] He asked her if she was a prostitute and if she stuck the stickers, what she denied. [ 11 ] She asked the man to send her a picture of the sticker. [1]

[ 12 ] The phone number of the complainant provided by her employer Deloitte appears at top left of the sticker, a scantily clad woman in the middle, and the name Luscious L. at bottom right. What this sticker suggests is not open to

interpretation. [ 13 ] She informs the man that she will go to the police. Which she did. [ 14 ] On May 23, 2019, a package is received at the reception desk of the Deloitte’s Montreal office, where the plaintiff worked at that time. [ 15 ] Since no name appears on the envelope, it was opened by the courier. Once the content of the envelope was revealed, the plaintiff received a call from a courier member informing her that she had received a sensitive envelope. [ 16 ] The envelope contained a female underwear and a letter with the following message [2] : Hey L.

F., I was surprised when your friend told me you worked at Deloitte. I recognized you from your picture. Even more surprised that someone in your profession uses their real name. In any case, you were in such a rush to leave last time you left these in the sheets. Until next time… Michel [ 17 ] The plaintiff panicked, making the connection with everything she had experienced since December 2018. [ 18 ] She decided to inform her employer (Deloitte) of the situation and to file a complaint to the police. [ 19 ] Deloitte initiated an internal investigation to identify the perpetrator of Ms.

F.’s harassment. [ 20 ] Mr. Scott Hunter is an owner partner at Deloitte. He’s been working at the latter since 2010. He is leading a team that provide a range of services, including computer forensic, document review, regulatory investigation, employee investigations and other legal related matters. [ 21 ] He has made electronic documents analysis for the Court in the past in regard to internal investigation cases and criminal cases, most specifically in fraud and harassment matters. [ 22 ] Late May, beginning of June, Mr.

Hunter was contacted by Nicole Broley, Assistant General Counsel at Deloitte. [ 23 ] She asked him to look at the information and digital information that was available, to see if his team could identify who may have been sending the harassing communications and helping to stop it if it is possible. [ 24 ] His team investigated the different communications the plaintiff received but they were not able to trace back any real person, only pseudonyms, email addresses or fake phone numbers. [ 25 ] In short, the investigating team had no idea who could be the author of the harassment. [ 26 ] Mr.

Hunter had no knowledge of the plaintiff at the moment and never met her during the internal investigation. [ 27 ] In June 2019, the plaintiff was promoted at Deloitte from Senior Consultant to Manager. [ 28 ] On June 3, she received a new phone with a new phone number, from her employer. [ 29 ] Despite this change, the plaintiff continued to receive the same type of harassing calls and SMS of sexual nature but now, on her new phone number provided by Deloitte. [ 30 ] On June 11, a second package is received at Deloitte’s Montreal office. [ 31 ] Since no name appears on the envelope, it was opened by the courier.

Once the content of the envelope was revealed, she received a call from the same woman from the courier to inform her that she received another letter. [ 32 ] Even though the harasser did not write the name of the plaintiff on the envelope, he writes her full name and business address at the beginning of the letter with the following message [3] : Hey L., Are you sure you want to use your real name for the loop? I know you like the title “Climbing the Corporate Ladder”, but most girls will use a screen name. You definitely looked like a real pro for your first time.

It turned out great as you can see from the still we grabbed from it. I know you were pondering the anal/DP but remember double means double the money, and as always it is all cash. Either way let me know when you want to do your next session. -P [ 33 ] A picture of a woman and a man engaging in sexual activity accompanies the text.

[ 34 ] The plaintiff did not participate in a pornographic movie. [ 35 ] On June 13, she received SMS from nashmintos@gmail.com. First SMS [4] mentioning: “ I ran into your friend and she told me you got a new number ”, followed by a picture of a man showing his genital and the message: “ In my camper now near your house” . [ 36 ] An hour later, she received another message from the same address, that goes as follows: “ D said there is nothing you wouldn’t do for the right price ”. [5] [ 37 ] The address nashmintos@gmail.com is unknown to the plaintiff.

She began to get really scared as she saw a camper near her house in the same period of time. [ 38 ] Still in June, the plaintiff received a call from another restaurant, the Gladstone. The man at the phone told her that a sticker offering sexual services with her phone number had been found in the men’s restroom of the restaurant. [ 39 ] She saw the name of the restaurant on her call display, she wrote down the phone number and give it to the investigating team. [ 40 ] On June 21, a third package is received at Deloitte’s Montreal office. Once again, no name was written on the envelope.

The letter goes as follows [6] : Hey L., You did a great job at the shoot. Daniel said you’re a pro at this. We’re editing the final sequence and preparing the DVD cover, see below. The title is “Fuck the corporate ladder”. I need to know if you want to use L. F. in the credits or if you have a stage name. I’ll be in touch on the next volume. Think about anal and girl-on-girl scenes again.

It’s a lot more money. - Joel [ 41 ] The picture below the message is the same as the one accompanying the letter of June 11. [ 42 ] On July 17, a fourth envelope is received at the Montreal office of Deloitte. [ 43 ] The full name and complete professional address of the plaintiff is written on the letter, the picture below the message is the same as the one accompanying June 11 and June 21 letters and the message goes as follows: " c’est ma scène préférée dans le film” , “ tu es formidable !”, “ -J ”. [7] [ 44 ] On July 18, at 10:03AM, the plaintiff received two emails simultaneously.

The first one is an automatic email verification from support@pornhubhelp.zendesk.com asking her to click a link to create a password and sign-in. [8] The email subject is [EXT] Welcome to Pornhub . [ 45 ] The second one is an automatic email from partners@redtube.com [9] that inform her that she is registered as a CC , with the request number, and ask her to reply to the email to add comment regarding the request made with her email to participate at the Content Partner Program .

The subject of the email is [EXT] CPP new application . [ 46 ] The information used for the request attached to the email included, notably: User: Luscious L. [10] Name: L. Email: [the professional email of the plaintiff] [11] Program name: Sexy Escorts [ 47 ] The request was placed on July 17, 2019 at 22:10 EDT. [ 48 ] The plaintiff never registered herself on those websites neither ever used her Deloitte email on those websites. [ 49 ] She forwarded those emails to the investigating team right away. [ 50 ] Still on July 18, but at 10:33 AM, the plaintiff received an automatic email from support@redtube.com.

The subject of this email is [EXT] [RedTube] Re: General: Foreign films [12] . [ 51 ] Two messages are attached to this email. The first one is a reply from Emma (RedTube) of July 18, 2019 at 11:32 AM ADT, that related to a comment made on redtube.com . [ 52 ] The second one is a comment made on RedTube website, on July 17, 2019, 11:13 PM ADT [13] , with plaintiff’s professional email used as reference for feedback. [ 53 ] The comments go as follows: I would like to see more foreign content.

I am Italian and there are [sic] a lot of films that should be available in your site. [ 54 ] The automated reply to the comment included different information on the user who made it such as the browser used to submit

the message, user’s connection information and an IP address. [14] [ 55 ] The plaintiff forwarded that email to the investigating team right away. [ 56 ] Scott Hunter and his team looked at all the content of the message to see if there were anything else they could further investigate to make a connection to a real person. [ 57 ] The information about the user browser used as well as the user’s connection was not helpful. [ 58 ] However, the IP address associated to the comment gave an additional piece of information to the investigating team. [ 59 ] As Mr.

Hunter explained, an IP address is an identifying number used to identify a device or a connection to the internet. [ 60 ] Essentially, an IP address is assigned to a connection in one of the following ways. [ 61 ] First, each device has an internal IP address, which is different from one device to another.

If the device is connecting directly to the internet, the IP address will be the one assigned to the device. [ 62 ] Second, when a device is connecting to the internet through a private Wi-Fi network, such as on the home network for example, the IP address assigned to that connection is the one assigned to the modem of this Wi-Fi network.

That means that all the devices that have access to that private network have the same IP address assigned to their connection. [ 63 ] Third, when a device is connecting to the internet through a public Wi-Fi network, like at a coffee shop for example, the IP address assigned to that connection is the one assigned to the modem of that Wi-Fi network. That means that any client that has access to that Wi-Fi will have the same IP address assigned to their internet connection. [ 64 ] When an employee connects himself on the Deloitte’s server, he is being asked to provide his login credentials (username and password).

The server tracks the date, the time, user credentials used, the system that is attempted to be accessed and the IP address used for the connection. [ 65 ] Knowing that, Mr. Hunter contacted the internal IT security group of Deloitte, in particular Mr. Malik, and asked him to look in the available logs of Deloitte employee’s connections activity to see if that IP address has been used by a Deloitte employee. [ 66 ] Deloitte Canada has 13,000 employees. Deloitte has hundreds of thousands worldwide. [ 67 ] Mr. Hunter did not mention to Mr. Malik the reason why he was looking for that information. [ 68 ] Mr.

Malik did not have a direct access to the server. In fact, no one in Canada had access to it. There was a way to obtain the information through the system owner, by addressing the question to the Global Incident Team. That team has access to the data from Microsoft Office 365 and it’s located in the United States of America (USA). [ 69 ] Mr. Malik sent an email to Mr. Diener, from the Global Incident Team asking Mr. Hunter's question. [ 70 ] Mr. Malik then received a spreadsheet from Mr. Diener. Mr. Malik did not analyze the Excel table nor modify it [15] and forwarded it directly to Mr. Hunter. [ 71 ] Once Mr.

Hunter received the spreadsheet from Mr. Malik, he verified the username, whether the connections with the relevant IP address were successful and if it was done from a device managed by the firm. [ 72 ] According to the Excel table, the accused logged in on Deloitte’s server with the relevant IP address on twenty-one (21) occasions, between June 22 and July 19, 2019. [ 73 ] On nine (9) occasions, the connections were successful [16] , meaning that the accused entered his username and password.

On six (6) occasions, he logged on a device managed by Deloitte [17] and on two (2) occasions [18] , he also completed his identification with Multi-Factor Authentication (MFA). [ 74 ] Mr. Hunter had no knowledge of the accused when he received the Excel table. He learned that the accused holds a Director's position in Deloitte’s Toronto office. [ 75 ] Mr. Hunter then verified through Deloitte system if the accused had had any interaction with Ms. F.. [ 76 ] The performance report review of the plaintiff [19] contained 23 performance review.

One of them has been performed by the accused. [ 77 ] The accused created the review on November 1, 2018 and finalized it on November 14, 2018. [ 78 ] That document reveals that the accused was the plaintiff's team leader on a project that took place between August 1 and September 28, 2018. [ 79 ] Out of 23 performance evaluations, the accused is the only one who used the lowest grading ( Strongly disagree ) on the first two questions i.e., " Does the employee deserve a bonus? " and " Whether you would always want that person on your team?

". [20] [ 80 ] The accused is also the only one to have indicated that the plaintiff is at risk to be a low performer [21] . He also answered "No" to the question, " Is the employee operating at the next level? "

[ 81 ] Lastly, the accused also made three comments regarding his assessment of the complainant’s work [22] . These are the harshest comments the plaintiff has received. [ 82 ] Mr. Hunter then consulted the expenses of the accused. [ 83 ] The expenses reports created by the accused indicated that he claimed a reimbursement for a meal taken at the MajesThé restaurant on March 13, 2019. The bill indicated the date, the time, the address of the restaurant in Montreal and its phone number. The accused also claimed a reimbursement for a meal taken at the Gladstone restaurant on June 20, 2019.

The bill also indicated the date, the time, the address of the restaurant in Montreal and its phone number [23] . [ 84 ] On July 22, 2019 at 15:49, the plaintiff received another automated email by support@redtube.com [24] .

As for the Exhibit P-7, two messages are attached to that email. [ 85 ] The first one is a reply from Emma (RedTube) of July 22, 2019 at 4:49 PM ADT, that contained the comment below that reply, made on redtube.com . [ 86 ] The second one is a comment made on RedTube website, on July 22, 2019, 3:49 PM ADT [25] , with the professional email of the plaintiff used as reference for feedback. [ 87 ] The comment goes as follows: I use private mode for my viewing, but I sometimes mistakenly click premium button.

The redtube premium sometimes comes up in a non-private browser. [ 88 ] Once again, the browser used to submit the message and the IP address appears in the automatic reply.

They are the same as those that appear on the comment of July 17, 2019, Exhibit P-7. [ 89 ] On July 25, 2019, Deloitte set a meeting with the accused at its Toronto office to go through what was found during the internal investigation and then terminated his employment with the company. [ 90 ] The accused had a laptop and an iPhone 8 provided by the firm which he brought back to the workplace. [ 91 ] When the internal investigation team went through the Web history of the laptop, it found different research about how "wiping" phones and resetting iPhone 8. [ 92 ] Then the investigating team realized that the accused did not bring back the iPhone 8 provided by the firm but a different one. [ 93 ] The plaintiff confirmed that she worked with the accused in the period of time indicated in exhibit P-11 and that she had a hard time working with him. [ 94 ] The plaintiff mentioned that all different form of harassment suddenly stopped at the end of July 2019.

ISSUES IN DISPUTE 1- Does the hearsay rule apply to the content of Exhibits P-7 and P-7A? 2- Does the accused guilt is the only reasonable conclusion available on the totality of the evidence? 1. Does the hearsay rule apply to the content of Exhibits P-7 and P-7A? [ 95 ] Many electronic documents have been produced during the trial. The Defence contested the admissibility of only two of them, P-10 and P-13. [ 96 ] The Court rendered a decision on the admissibility of those exhibits on March 22, 2023. [ 97 ] The Defence also object to the testimonies of Mr.

Hunter and Malik because it considers that the whole or parts of those would constitute a form of expert testimony. [ 98 ] To be effective, the Court therefore decided to hold a voir-dire in which Mr. Hunter and Mr. Malik will be heard and the parties would then debate their admissibility at the end of the voir-dire. [ 99 ] The Defence finally withdrew that objection after the testimonies of Mr. Hunter and Mr. Malik [26] .

Consequently, their testimonies were adduced in evidence entirely. [ 100 ] Despite the importance of the contents of exhibits P-7 and P-7A, the Defence did not object to their admissibility when it was

produced. [ 101 ] Defence waited until its final argument to present its objection based on hearsay. [ 102 ] This way of proceeding is, to say the least, prejudicial for the Prosecution . [ 103 ] The accused did not submit any authorities to support his position that P-7 and P-7A content is hearsay. [ 104 ] Like many other exhibits produced during the trial, exhibits P-7 and P-7A are electronic documents as defined under s. 31.8 of the Canada Evidence Act . [ 105 ] It is not all electronic document or all parts of electronic document that is subject to hearsay rule. [ 106 ] In their book Modern Criminal Evidence, [27] the authors discuss the application of the hearsay rule to electronic documents in those terms: Many electronic documents include relevant content that was created automatically by a computer.

For example, documents typically include date and time stamps or internet service provider information. This information is created as a result of computer’s own operations and not as a result of a human choosing to input data. This data is properly characterized as computer byproduct evidence and should not be considered a form of hearsay. This information is commonly referred to as “metadata”. Metadata is data that provides information about other data. It may include descriptive information about a resource, such as its title, author, or word count.

Many electronic documents also contain metadata about who created a document, when it was created, and who last accessed it . Metadata exists because of intentional design features in most commonly used computer software . Yet the line between metadata and the actual content of digital evidence can be illusory. In some cases, the metadata associated with a piece of evidence can be more informative than the content of that evidence itself. For example, a person’s smartphone may demonstrate who they communicated with, by which programs or apps, at what times, for how long, and where (if GPS was enabled).

All of this can be determined without even examining the actual content of any messages or knowing what was said in a phone call. […] (Emphasis by the Court) In Ball, 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 byproduct data associated with them. The Crown alleged the appellant was the author of these messages.

Since the Crown was seeking to introduce the messages to prove the truth of their contents – that is, that the accused had authored the text within them – the standard rules of evidence respecting hearsay and party admissions applied. But the information associated with those messages that was created by the computer mechanically, such as date and time stamps, was real evidence and independently admissible . However, the accuracy and reliability of the byproduct data and the technology that produced it might still be in dispute.

The weight to be attached to any such evidence remains for the trier of fact to determine.

But that remains part of the fact-finding process of the trial court, and it does not transform the evidence into hearsay or present a barrier to its admissibility. (Emphasis by the Court) [ 107 ] In the Law of evidence in Canada [28] , the authors also concluded that some electronic documents may be classified as real evidence and consequently does not offend the hearsay rule, referring in particular to this following passage of Electronic Evidence in Canada [29] : A record that is created by a computer system whose function it is to capture information about cellular telephone calls would be introduced as real evidence, and the record could be relied upon for the truth of its contents without resort to any exception to the hearsay rule .

Because the information that is captured (the date, time and duration of the call, for example) is recorded automatically without being filtered through a human observer, the condition for real ESI [Electronically Stored Information] evidence is satisfied. It is also important to note that the information recorded is itself not an out-of-court statement by a human declarant, but rather it consists of objective information that is captured and recorded by an automated process .

On the other hand, if a record is created by a human sitting at a computer keyboard and entering data, the ESI embodied in the record could not be tendered as real evidence if it is offered for the truth of its contents, and its proponent would have to bring the record within the ambit of an exception to the rule against hearsay. The record would be documentary evidence, and subject to the same limitations as would apply to a conventional document.

The information contained in the record has been filtered through a human observer, and the ESI reflects the human declarant’s out-of-court statements concerning what he or she observed, heard or did. It is not real evidence. (Emphasis by the Court) [ 108 ] In Saturley [30] , Justice Wood provides an interesting review of the caselaw on that subject.

He concluded that electronic information which is automatically generated by computer without human intervention should be considered as real evidence and, consequently, not subject to hearsay rule. [ 109 ] As for exhibits P-8 and P-8A, exhibits P-7 and P-7A are two automatic emails sent at the plaintiff professional email after the harasser used that professional email for feedback on RedTube and Pornhub website. [ 110 ] Nowadays, that kind of automated email is common knowledge.

Whether it’s for the customer's account registration at a bank, an insurance company, for a forgotten password or any other identity confirmation, to give some examples, those kinds of automated emails are commonplace.

[ 111 ] Obviously, the harasser knew how automated email works. By using the plaintiff’s professional email for the registration (P-8 and P-8A) and for the comments (P-7 and P-7A), the harasser knew that she would receive those automated emails from RedTube and Pornhub. That was the harasser's objective. It would otherwise be pointless. [ 112 ] As for the content of automated reply, except for the comment itself ( red square ), all other information is clearly generated automatically by the informatics system ( blue square ) [31] .

P-7 (July 17) P-7A (July 22) [ 113 ] For these reasons, the Court concluded that the information about the user who made the comments using the plaintiff’s professional email as feedback are real evidence and that hearsay rule does not apply to that information. [ 114 ] To be more specific, this conclusion applies in particular to the IP address 99.224.35.97. 2.

Does the accused guilt is the only reasonable conclusion available on the totality of the evidence? [ 115 ] As it was the case in Villaroman [32] , arguments may be boiled down to the simple question of whether the totality of the evidence satisfy the Court, beyond reasonable doubt, that the accused committed the offences that he is charged with. [ 116 ] In Villaroman , the accused was having problems with his laptop computer, so he left it with a repair shop.

The repair technician found child pornography on the laptop and call the police. [ 117 ] Then, Villaroman was charged with numbers of pornography-related offences including possession of child pornography. The trial judge found that the mainly circumstantial evidence against Villaroman proved guilt on the charge of possession of child pornography beyond a reasonable doubt. [ 118 ] The Alberta Court of Appeal found that the trial judge erred because he failed to consider reasonable inferences inconsistent with guilt that could have arisen from a lack of evidence .

The Alberta Court of Appeal found that, by failing to give accused the benefit of “gaps” in the evidence, the trial judge had put a burden on the accused to prove something.

[ 119 ] The Supreme Court took the opportunity to clarify the circumstantial evidence analysis. [ 120 ] In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts.

If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the proof beyond reasonable doubt standard. [ 121 ] But those inferences (other than guilt) must be reasonable, given the evidence and absence of evidence, assessed logically and in light of human experience and common sense. [ 122 ] When assessing circumstantial evidence, the trier of fact should consider other plausible theories and other reasonable possibilities which are inconsistent with guilt. [ 123 ] In some circumstances, the Crown may need to negate these reasonable possibilities but, does not need to disprove every possible conjecture which might be consistent with innocence. [ 124 ] The Supreme Court reminds us that reasonable doubt must be based on reason and common sense, it is not imaginary or frivolous and does not involve proof to an absolute certainty.

It must be logically connected to the evidence. [ 125 ] When face circumstantial evidence case, the trier of fact must guard himself against the risk of filling in the blank by too quickly overlooking reasonable alternative inference. [ 126 ] The Supreme Court concluded that the Alberta Court of Appeal erred by focusing on hypothetical alternative theories and, at times, engaging in speculation rather than on the question of whether the inferences drawn by the trial judge, having regard to the standard of proof, were reasonably open to him. [ 127 ] In so doing, the Supreme Court presented some examples of what a reasonable alternative is not: [33] [70] At certain points in its analysis, the Court of Appeal crossed the line from considering the effects of gaps in the Crown evidence to raising purely speculative possibilities.

For example, the Court of Appeal considered questions such as whether the “laptop [went] to work” or “during the day to a school, college, or university” or “may have sat much of each day in a location or locations frequented by many friends, coworkers, or fellow students”: paras. 28 and 31.

These particular factual scenarios are purely speculative and postulating them goes beyond the bounds of properly considering the impact of the gaps in the Crown evidence about the physical location of the laptop. [ 128 ] Thus, other plausible theories or other reasonable possibilities than guilt must be based on logic and experience applied to the evidence or the absence of evidence, not on speculation. [ 129 ] Finally, the Court should not address its analysis on a piecemeal basis. [ 130 ] It is not circumstantial evidence analysis if the trier of fact looks at the evidence piece by piece in isolation. [ 131 ] Circumstantial evidence analysis required the trier of fact to look at all pieces of evidence at the same time and ask himself if he is satisfied beyond a reasonable doubt that the accused guilt is the only reasonable conclusion.

It is what the expression totality of evidence and evidence as a whole means. [ 132 ] The Court also have to bear in mind that the standard of proof beyond reasonable doubt does not apply to the individual pieces of evidence that make up the Crown’s case, but to the total body of evidence upon which the Crown relies to prove guilt. [34] [ 133 ] That said, in order to analyze the circumstantial evidence properly, the probative value of each piece of evidence must be evaluated correctly. [ 134 ] In the present case, some of them deserve to be discussed more specifically.

MajesThé and Gladstone restaurant phone calls [ 135 ] A distinction must be made concerning those calls between proof of its content and proof that a declaration was made. [35] [ 136 ] The prosecution has not invoked any exception to the hearsay rule in order to admit those conversations for the truth of their content. [ 137 ] Thus, the fact that the plaintiff’s reported the content of these calls establishes that they were made, that the words were spoken, but not that what was said to the plaintiff is the truth. [ 138 ] For the call from the MajesThé restaurant, even if the plaintiff received a picture of the sticker and even if the man on the phone said that the sticker was stuck on a men’s bathroom wall, it does not prove that it was the case. [ 139 ] The fact that the man on the phone mentioned he was calling from the MajesThé restaurant does not prove this to be the case either.

This is hearsay. [ 140 ] As for the Gladstone restaurant, there is no evidence of the existence of a sticker. The man mentioned that there was one, with the new plaintiff number on it, but there is no proof of that. [ 141 ] The fact that the man on the phone mentioned he was calling from the Gladstone restaurant does not prove this to be the case either.

[ 142 ] However, considering that the plaintiff saw the restaurant’s name and number on the display of her phone, it can support the inference that these calls were made from these restaurants at the time she mentioned she received it. [ 143 ] The plaintiff can also testify that the call from MajesThé restaurant was made on her first phone. [ 144 ] That the call from Gladstone restaurant was made on her new phone, received on June 3, 2019. [ 145 ] And that those calls were of the same nature, i.e., to imply that the plaintiff is involved in prostitution. [ 146 ] The sticker produced under exhibit P-1 is admissible as real evidence.

The fact that the harasser used the name Lucious L. is especially relevant considering that the harasser used the same name when he did the plaintiff registration on Pornhub website (exhibit P-8). [ 147 ] The evidence discuss above is part of the harassment and the repeated harassing communications suffered by the plaintiff. [ 148 ] Their probative value is revealed when they are analysed with the expense report of the accused (exhibit P-12). [ 149 ] The plaintiff received only two phone calls from restaurants related to the harassment she was experiencing. [ 150 ] The first one, from the MajesThé restaurant, was placed on her first phone in March 2019.

The expense report of the accused demonstrates that he was at that restaurant on March 13, 2019. [ 151 ] Three months later, in June 2019, the second call, from Gladstone restaurant, was placed on her new phone that she received some days before.

The expense report of the accused demonstrates that he was at that restaurant on June 20, 2019. [ 152 ] Although the plaintiff is unable to be more specific about the exact date she received these calls, the expense report of the accused, who is working at Deloitte’s Toronto office, demonstrated that he was in Montreal and went to these restaurants at the same period of time as those two calls received by the plaintiff were made. The IP address identified on Exhibits P-7 and P-7A [ 153 ] Based on his experience, Mr.

Hunter made the assumption that the IP address that appears with the comment made on RedTube website is linked to the user’s connection of that comment. [ 154 ] Defence opines that the probative value of that assumption is weak because Mr. Hunter has no knowledge of the RedTube or Pornhub systems. [ 155 ] In addition, the police did not take any steps to verify the IP address or the emails from RedTube and Pornhub. [ 156 ] The Court acknowledges that those omissions are quite surprising.

It is hard to understand that a communication order has not been executed to investigate who’s behind that IP address. [ 157 ] This simple step could have had an impact on the probative value of P-7 and P-7A, and thus on other exhibits such as P-13, considering that it could identify which kind of network was used for these connections and its degree of proximity to the accused. [ 158 ] This being said, the Court must appreciate the evidence as it is, without speculation. [ 159 ] In fact, the IP that appears on exhibits P-7 and P-7A can reasonably be only one of two things: the IP address of the user’s connection of the comment or the IP address of RedTube server. [ 160 ] For Mr.

Hunter, it is illogical that RedTube had transmitted its IP address in the automatic reply. For him, it is the IP address of the user’s connection of the comment. [ 161 ] Regarding Mr. Hunter testimony, it is relevant to recall that the Defence withdrew its objection to his testimony. Consequently, his testimony was admitted in its entirety. [ 162 ] It is right to say that Mr. Hunter does not have any experience of RedTube and Pornhub websites, but he has a broad electronic forensic experience.

His explanations on IP addresses functioning were clear and compelling. [ 163 ] His assumption regarding the fact that the IP address is linked to the user’s connection of the comment is reasonable. [ 164 ] In addition, the analysis of the two emails also leads to draw the same reasonable inference that the information linked to the comments is information about the user who made it. [ 165 ] All information in the same subsection of the IP address is linked to the user: his User Agent , information concerning the JavaScript , the Flash Version , the Player version and AdBlock , his Username (undefined), his User Id (undefined) and IsProxy (same as the IP address at the top).

And all these are linked to the email used for feedback and to the comment made [36] . [ 166 ] The only reasonable conclusion is that the IP address linked to the comments made on July 17 (P-7) and July 22 (P-7A) is the IP address of the user’s connection of the comment.

Exhibits P-10 and P-13 [ 167 ] The Defense opines that the probative value of those exhibits is low for different reasons. [ 168 ] First, the Prosecution did not produce the raw data. [ 169 ] The Court already dealt with this argument in its judgement of March 22, 2023. In the absence of evidence to the contrary, the presumptions of integrity provided at ss. 31.1(

a) and 31.3 (

c) apply. In addition, the evidence convinces the Court that the Excel table adequately represented the connections on Deloitte’s server by the accused between June 22 and July 22, 2019. [ 170 ] Second, the Defence refers the Court to the metadata of P-10 to demonstrate that the document has been modified by Anna Jia in Toronto.

For the Defence, there is a lot of room for manipulation in those documents. [ 171 ] It is clear from the evidence that exhibit P-13 is the original Excel Table. [ 172 ] The exhibit P-13 has been sent to the Court and the parties by M e Querry, Deloitte attorney, in the course of the examination of Mr. Malik. [ 173 ] The metadata of exhibit P-13 indicates that the Excel table has been created by Mr. Diener on July 22, 2019, at 15:31. The last modification, also by Mr. Diener, has the same date and time as the creation [37] . [ 174 ] In comparison, exhibit P-10, which is the Excel table used by Mr.

Hunter, has been modified by Anna Jia, from Toronto, on July 23, 2019, at 10:33 AM [38] . [ 175 ] The two Excel tables contain the same information and have the same structure, except that column A, date and time, from the original Excel table (P-13) have been split into two columns in P-10. [ 176 ] This comparison demonstrates that metadata information is accurate. The Excel Table used by Mr. Hunter is a modified version of the original.

Having the original, we can easily identify what was modified (only date and time that were split) and the metadata had kept a trace of that modification. [ 177 ] The metadata also demonstrates that exhibit P-13 has not been altered between its creation by Mr.

Diener and its production in the Court file. [ 178 ] The Court is satisfied of the integrity of exhibit P-13. [ 179 ] Third, the accused did not connect to Deloitte’s server with the same IP address as the harasser on the same date. [ 180 ] The harasser used that IP address to make comments on RedTube website with the plaintiff’s professional email as feedback on July 17 at 11:13 PM and on July 22 at 3:49 PM. [ 181 ] When we look at the Column A of P-13, it is right to say that the accused did not connect to Deloitte’s server with the same IP address on the exact same dates.

On the other hand, the 21 relevant connections demonstrate that the accused had access to that IP address any day of the week and at any time of the day, even in the middle of the night [39] . [ 182 ] Fourth, the Defence identify a surprising short period of time between two locations [40] . [ 183 ] The connections concerned by this observation does not, however, concern the 21 connections to the relevant IP address. [ 184 ] The 21 relevant connections all have the same location, i.e., Etobicoke, Ontario, neighbouring city of Toronto. [ 185 ] Fifth, 12 out of the 17 interrupted or failed connections occurred with the relevant IP address. [ 186 ] Which is correct.

That said, most of the failures immediately precede or follow a successful connection. [ 187 ] The Court also notes the following facts. [ 188 ] Exhibit P-13 represented all the connection on Deloitte’s server made with the username of the accused between June 22 and July 22, 2019. [ 189 ] That represented 512 different connections from different devices and using different IP addresses. [ 190 ] Those connections were made through 145 different IP addresses. [ 191 ] On 21 occasions, between June 22 and July 19, 2019, the accused connected himself on Deloitte’s server with the relevant IP address: 99.224.35.97. [ 192 ] Only three (3) other IP addresses were used more often. [ 193 ] The connections of the accused on the Deloitte’s server with the relevant IP address were made any day of the week and at any time of the day, even in the middle of the night and as the same location every time i.e., Etobicoke, Ontario, neighbouring city of Toronto. [ 194 ] On nine (9) occasions, the connections were successful [41] , meaning that the accused entered his username and password.

Some of them were done with a device managed by Deloitte and others from another device. [42]

[ 195 ] On six (6) occasions, he connected himself with a device managed by Deloitte [43] , which means that on 15 occasions, he connected himself with another device with the same IP address. [ 196 ] On two (2) occasions [44] , he also completed his identification with his Multi-Factor Authentication (MFA). That means the accused connected himself with his username, his password, and his MFA.

Both were done with a device that was not managed by Deloitte. [ 197 ] Considering the above, the relevant IP address is not assigned to a specific device but to a Wi-Fi network. [ 198 ] A Wi-Fi network located in Etobicoke, Ontario, that the accused had access any day of the week, anytime of the day, with different devices and that he is the only employee of Deloitte Canada, out of 13,000, that had used it in the relevant period of time.

The unreturned iPhone 8 and the Web history [ 199 ] For the Prosecution, the fact that the accused did not bring back the right phone is a post-conduct which from the Court can infer the guilt of the accused. [ 200 ] For the undersigned, the evidence is unclear as to when the accused brought back the computer and the iPhone nor as to when the research concerning how to “wipe” phones or reset iPhone 8 were done by the accused. [ 201 ] If it is after he had been made aware about the investigation and his dismissal, that could be relevant and of great probative value. [ 202 ] However, if the search was done before, the probative value is much lower. [ 203 ] Considering the vagueness of that information, the Court dismisses it from its analysis.

Analysis of the totality of evidence [ 204 ] Although this did not appear to be the case for the first few months, it became increasingly apparent that the harassment that the complainant was experiencing was work related. [ 205 ] The harassment began on her first phone number. Many people could have access to her number, nothing specific there. [ 206 ] Then she received the two first packages at her office.

The harasser knew she was working there and to whom he was sending the package but he took care not to write the plaintiff’s name on the envelope, ensuring that it will be opened by someone other than her at the office who could see her full name and address in the letters and the content of those letters that imply that the plaintiff would be an escort and would play in pornographic movies. [ 207 ] The purpose was to humiliate her, denigrate her and damage her reputation in her workplace. [ 208 ] As it is the case with the third and fourth package who refers to the plaintiff’s recent promotion in which the harasser written that the plaintiff like the title “Climbing the Corporate Ladder” and “Fuck the corporate ladder” for what would be her first pornographic movie. [ 209 ] The harasser also has the same objective to humiliate, denigrate and damage the plaintiff’s reputation by using her professional email on RedTube and Pornhub websites. [ 210 ] The analysis of all the evidence leads to the unique conclusion that all acts of harassment are related: a.

Been committed in a continuous period of time of seven (7) months, from December 2018 to July 2019. b. All acts of harassment are sexual in nature and are intended to imply that the plaintiff is an escort or a pornographic actress (Phone calls, SMS, packages at plaintiff’s office, registration and comments on pornographic Websites with plaintiff’s professional email as feedback). Some documents have also the same kind of contents, for example: i.

In the SMS from Nashmintos (P-6) than in the letter P-2 “your friend told me” to justify why he wrote an SMS on her new phone and why he sent a letter at Deloitte office; ii. The “surprising fact” that she used her real name for the prostitution and as a pornographic actress (P-2, P-3 and P-4). iii. The same picture used in the letter inside the package P-3, P-4 and P-5. iv. The reference that the plaintiff is an escort P-1, P-2, P-8. v. And a porno actress, P-3, P-4, P-5 and P-8A.

c. The phone calls harassment continued without interruption despite the fact that she received a new phone number on June 3, 2019. d. On the sticker of March 2019, exhibit P-1, the name used is Luscious L. , link to the first phone number of the plaintiff, hinting that she would offer escort services. Four months later, in the registration on RedTube website on July 17, 2019 (The Pornhub Network Content Partner Program), exhibit P-8, the username used by the harasser to designate the plaintiff is also Luscious L. and he registered her in Sexy Escort program with her professional email from Deloitte. e.

All acts of harassment (phone calls, SMS, package, registration and comments on pornographic website) than spanned seven months, suddenly stopped at the end of July 2019. [ 211 ] The perpetrator of this harassment must have had access to the following information: a. Full name of the plaintiff. b. Her phone number from the device provided by her employer Deloitte before June 3 rd and her new phone number provide to her by Deloitte on June 3 rd in contemporary manner considering that the harassment continued despite that change. [45] c. That she worked for Deloitte, at the office of Montreal. d.

The address of Deloitte Montreal office, placed where the four packages (P-2 to P-5) were sent. e. The plaintiff’s professional email. f. How mail reception works at Deloitte. g. That the plaintiff had a promotion at Deloitte in June 2019.

The references to expressions "Climbing the Corporate Ladder" (Exhibit P-3, June 11) and "Fuck the corporate ladder" (Exhibit P-4, June 21) as pornographic movie’s title are not innocent. [ 212 ] All evidence leads to the conclusion that the author of the harassment his someone from Deloitte. [ 213 ] Which includes the accused. [ 214 ] Various pieces of evidence distinguish the accused from the 13,000 other Deloitte Canada employees. [ 215 ] First, he personally knew the plaintiff. They had a difficult working relationship that ended some time before the beginning of the harassment.

In isolation, that does not mean much, but it is part of the equation. [ 216 ] The accused also personally knew that the plaintiff was working at Deloitte’s Montreal office, and he knew her professional email (exhibit P-11). [ 217 ] Second, the accused is the only one, out of 13,000 employees, that used the same IP address as the harasser. [ 218 ] He did not use the same IP address only once, but on multiple occasions, any day of the week, at any time of the day and with different devices. [ 219 ] Third, the expenses report demonstrates that the accused, who was working for Deloitte’s Toronto office, was in Montreal, at the MajesThé restaurant and at the Gladstone restaurant in the same period of time that the call placed on plaintiff’s phones from those restaurants were made. [ 220 ] Lastly, following the dismissal of the accused, all kinds of harassment, that spanned seven months, suddenly stopped.

No more phone call, no more text message, no more package, no more email from pornographic websites. [ 221 ] The defence presents two inferences other than guilt: First, the accused could have been framed.

Second, it could be a coincidence. [ 222 ] As for framing, the circumstantial evidence, viewed logically and in light of human experience, is not reasonably capable of supporting an inference that someone would have framed the accused: • No evidence that someone could have a will to cause damage to the accused. • No evidence that the accused had any difficulties with his employer Deloitte or anyone in the employees, except the plaintiff. • No evidence that someone other than the accused had access to his device, his password and his MFA. • No evidence to explain how someone could have known that the IP address forwarded by RedTube would match the IP address that the accused used 21 times to connect to Deloitte’s server. • No evidence to explain how the person who could have framed the accused could have known that he would be in Montreal, in the MajesThé’s restaurant and Gladstone’s restaurant, in the same period as calls were placed on plaintiff first and second phone. • No one was pointing in the direction of the accused before the evidence did.

Mr. Hunter and Malik did not know the accused at all. The plaintiff did not even identified him as a potential suspect. [ 223 ] As Supreme Court mentioned in Villaroman [46] , while the accused need not lead evidence to show that another person would have wanted to frame him, had access to his password, his device, his Multi-Factor Authentication (MFA) and his expenses report, based

on the evidence and the lack of evidence before the Court, it is pure speculation to consider that someone could have framed the accused. [ 224 ] As for coincidence, it is more or less the equivalent of saying that the evidence is insufficient to meet the standard of proof beyond reasonable doubt. [ 225 ] When all the relevant evidence is analyzed together, it's unreasonable to conclude that it could be a matter of chance.

The accused is the only one who had such a difficult working relationship with the plaintiff, the only one, out of 13,000 employees, that used the same IP address than the harasser, he was also in the restaurants MajesThé and Gladstone in the same period as the calls on plaintiff’s cell phones were made and concomitantly to his dismissal, all acts of harassment suddenly stopped.

The Court considers unreasonable to conclude that the result of all of the above can simply be a coincidence. [ 226 ] In assessing the totality of the evidence, the Court concludes, beyond reasonable doubt, that the only reasonable conclusion is that the accused is the author of the harassment of the plaintiff. [ 227 ] Regarding the second count, although the Court comes to the same conclusion, the Court questioned itself about the application of the rule against multiple convictions considering the facts of the present case. [ 228 ] The Court therefore reserves its decision on the second count to allow the parties to make appropriate submissions.

FOR THESE REASONS, THE COURT: DECLARES the accused guilty on the first count. RESERVES its decision on the second count to allow the parties to make appropriate submissions regarding the application of the rule against multiple convictions. __________________________________ ANTOINE PICHÉ, J.C.Q. M e Christine Desjarlais Counsel for the Prosecutor M e Diana Sitoianu M e Gabriel Babineau Counsels for the Accused Dates of hearing: February 20 th , 21 st , 22 nd and 23 rd , 2023. March 21 st , 22 nd and 23 rd , 2023.

Appendix A (Metadata of exhibit P-13)

Une image contenant texte Description générée automatiquement Appendix B (Metadata of exhibit P-10)