R v Burns, 2014 NSSC 436

Supreme Court of Nova Scotia Citation: R v Burns, 2014 NSSC 436 Date: 2014-12-11 Docket: CRH No. 414664 Registry: Halifax Between: Her Majesty the Queen v. Timothy Burns Library Heading Restriction on Publication:

Section 486.4 of the Criminal Code of Canada Judge: The Honourable Justice Peter P. RosinskiHeard: August 6, November 25 and 26, 2014, in Halifax, Nova ScotiaWritten Decision: December 11, 2014Subject: Exclusion of evidence (or stay of proceedings) sought pursuant to ss. 7, 11(

d) and 24(1) Charter ofRights, and pursuant to the probative value/prejudicial effect common-law test.Summary: Mr. Burns is alleged to have sexually assaulted KJA in the early morning hours of June 16, 2011. Around noon on June 16, 2011, KJA sent text messages from her phone to Mr. Burns, who respondedfrom his phone. KJA presented at the QEII hospital around midnight June 17 – 18, 2011 and evidencewas gathered by SANE (Sexual Assault Nurse Examiner) staff. Cst. Parasram, as the initialinvestigating officer attended to seize that evidence.

Coincidentally, KJA was still present and hespoke to her for approximately one hour. She told him that Mr. Burns had sent her text messagesapologizing, and suggesting they part ways. He did not seize her phone, or view and record any textmessages thereon at that time. On June 21, 2014, Halifax Police Major Crime Unit member Det.Constable Lisa MacDonald was assigned as the formal investigator regarding the offence. She metwith KJA on June 23, 2011. By that time KJA had noticed that her text messages to Mr. Burns wereno longer visible on her phone.

She believed they were deleted by the automatic deletion feature in herphone. In an effort to preserve the text messages from Mr. Burns to her, she began to manually deleteincoming and outgoing text messages. She turned her phone over to the police on June 28, 2011. Forensic analysis thereof September 30, 2011 only revealed screenshots of Mr. Burns messages to KJAsent June 16, 2011. Mr. Burns had deleted all text messages between the two on June 16, 2011. Thetext messages from K JA to Mr. Burns were therefore unavailable for trial.

Defence made a number ofmotions for a stay of proceedings, or exclusion of the text messages from Mr. Burns as evidence attrial based on:

(1) The alleged deliberate deletion of her own text messages to Mr. Burns, by KJA – “conductintended to defeat the course of justice” –s. 7 Charter of Rights [destroyed evidence]

(2) Unacceptable negligence on the part of Cst. Parasram in not preserving the text messages onKJA’s phone, when he could have done so on June 17 – 18, 2011- s. 7 Charter of Rights [lostevidence]

(3) Breach of the right to fair trial, because the jury would not have the benefit of the texts fromKJA to Mr. Burns, making the evidence of texts from Mr. Burns incapable of meaning – s 11(d)Charter of Rights and R. v. Harrer (SCC), [1995] 3 SCR 562; and using a probativevalue versus prejudice analysis.

Issues:

(1) Did KJA deliberately delete her text messages to Mr. Burns? And if so, does that constitute a breach of s. 7 of the Charter of Rights , and what remedy should result?

(2) Was Cst. Parasram subject to a duty to seize and/or view and record the text messages on June 17 – 18, 2011, and if so was he unacceptably negligent in not doing so, causing a breach of s. 7 of the Charter of Rights ? If so, what remedy should result?

(3) Are the circumstances such that Mr. Burns’ right to a fair trial as envisaged under s. 11 (

d) would be violated if the text messages from Mr. Burns to KJA on KJA’s phone were admitted as evidence at his trial? If so what remedy should result? Should the text messages be excluded after a probative value/prejudicial effect common law test assessment? Result:

(1) KJA did not deliberately delete her text messages to Mr. Burns;

(2) Cst. Parasram did not have a duty to seize and/or view and record the text messages on KJA’s phone; even if he had such a general duty, his actions and inactions were not negligence, and much less so, unacceptable negligence;

(3) A distinction must be drawn between the constitutional imperative that accuseds have a right to a fair trial pursuant to s 11(d), which is intended to concern itself with the manner in which a trial must be conducted if it is to be fair, and the exercise of discretion vis-à-vis a specific piece of evidence and assessing whether the probative value thereof exceeds its prejudicial effect on the fair trial rights of an accused. In the former case the onus is on the accused. In the latter case the onus is on the crown, if at trial it seeks to introduce the evidence, as it does in this case. In this case, the proper inquiry is not whether the trial would be unfair under s. 11(

d) Charter , rather it is under the prejudice versus probative value analysis. The defence argument that the prejudice of only having one half of the “conversation” overbears the probative value of Mr. Burns text messages to KJA, was rejected. At trial the crown would present not only the text messages from Mr. Burns to KJA, but also KJA who could from recollection be asked in direct, and cross-examination, what was the content of her text messages. Additionally, Mr. Burns’ two police statements will be admitted as part of the crown case.

They contain his recollection as to what was the content of KJA`s text messages to him. The text messages sought to be introduced by the crown at trial are admissible, subject to any unexpected change of circumstances at the trial, upon which occurrence, the court may revisit its findings and decision. Depending on the evidence put before the jury, the court may have to give an instruction to the jury about the danger associated with incomplete statements, which may not amount to an “admission” of guilt by Mr. Burns. THIS INFORMATION SHEET DOES NOT FORM PART OF THE COURT'S DECISION.

QUOTES MUST BE FROM THE DECISION, NOT THIS LIBRARY SHEET. SUPREME COURT OF Nova Scotia Citation: R v Burns, 2014 NSSC 436 Date: 2014-12-11 Docket: CRH No. 414664 Registry: Halifax Between: Her Majesty the Queen v. Timothy Burns Restriction on Publication:

Section 486.4 of the Criminal Code of Canada

Judge: The Honourable Justice Peter P. Rosinski Heard: November 25 and 26, 2014, in Halifax, Nova Scotia Counsel: Glenn Hubbard, for Her Majesty the Queen Stanley MacDonald, Q.C., for Mr. Burns By the Court: Introduction “At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trialmust not be confused with the most advantageous trial possible from the accused's point of view: R. v. Lyons, (SCC),[1987] 2 S.C.R. 309, at p. 362, per La Forest J.

Nor must it be conflated with the perfect trial; in the real world, perfection is seldomattained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to theaccused.” [per McLachlin J., as she was in R v. Harrer (SCC), [1995] 3 SCR 562 at para.45] Background [1] Mr. Burns is charged that he committed a sexual assault upon KJA in the early morning hours on June 16, 2011. The Crownalleges that the complainant was so intoxicated that she was unable to consent to sexual activity, yet Mr.

Burns commenced to penetrateher vagina with his penis, until the complainant realized what was occurring, and adamantly advised him she was not consenting. [2] His trial is scheduled for December 15 – 19, 2014 before a judge and jury. [3] The complainant and Mr. Burns were known to each other. On the same day, but after the alleged assault occurred, thecomplainant sent text messages from her mobile telephone to Mr. Burns. Mr. Burns sent text messages using his mobile telephone to thecomplainant. The Crown wishes to introduce these at trial as evidence of admissions on the part of Mr.

Burns. [4] The complainant reported the alleged incident to police around midnight on June 17 - 18, 2011. Cst. Parasram authored aninitial officer’s report in which he noted that, according to KJA, Mr. Burns had sent texts to KJA apologizing, and suggesting that theymove on. [5] On June 23, 2011 the complainant provided a videotaped police statement to Det. Cst. Lisa MacDonald, who on June 28, 2011,seized the complainant’s phone. At the time, none of the text messages from KJA to Mr. Burns were visible on her phone. Thecomplainant believed that her phone had automatically deleted those messages.

In September 2011, police carried out a forensic analysisof her telephone. The only text messages found on her phone were those that she alleges were sent to her by Mr. Burns. [6] One would expect her text messages to be apparent on examination of Mr. Burns’ mobile phone, however he admitted in hisNovember 8 and 9, 2011 statements to the police, that he had deleted all of the text messages he received from, and sent to, thecomplainant regarding this matter. [7] Neither of their service providers are able to retrieve the text messages in question.

Therefore, the text messages that thecomplainant acknowledges she sent to Mr. Burns are irretrievable and unavailable for trial. [8] Thus, what remains as potential evidence at the trial are only the text messages from Mr. Burns to the complainant, and theirrespective recollections of what was the content of KJA’s texts to Mr. Burns. The Motions Herein [9] Mr.

Burns argues that the destruction by KJA, or unacceptable negligence regarding their loss by police, of the text messages[existing June 16, 2011 on the complainant’s mobile phone] constitute a breach of his right to make full answer and defense pursuant toSection 7 of the Charter of Rights. He also argues that his right to a fair trial will be violated pursuant to s. 11(

d) of the Charter of Rightsas interpreted in R. v. Harrer (SCC), [1995] 3 SCR 562. [10] As a remedy, he seeks either a stay of proceedings in relation to the criminal charge herein; or a court order excluding themfrom being presented as evidence by the Crown: i.e. the existing text messages; any references that Mr. Burns made to them in hispolice statement on November 8, 2011; and that KJA not be permitted to refer to them in her testimony at trial. The Evidence before the Court [11] The Defence presented its evidence first. It presented KJA as its witness.

The Defence suggested in its prehearing brief that she“deliberately deleted all text messages on her telephone, save for those which she alleges were sent to her by Mr. Burns on June 16,2011”. The Defence also suggested that it will “prove on a balance of probabilities that [the complainant] did not tell the truth about this

issue when she testified at the preliminary inquiry on November 20, 2012”. [12] The Defence presented Constable Duane Flynn, who is an officer with the Royal Canadian Mounted Police, and acknowledgedby both Crown and Defence to be properly qualified as an expert to give expert opinion evidence regarding “forensic analysis of seizedcell phones and computer systems for the recovery of data”. I reviewed his curriculum vitae (Exhibit VD-3) and note that he has alsobeen previously qualified as an expert in this respect by other Courts.

I was satisfied that he is qualified to give the general expertopinion sought. [13] Lastly, the Defence presented the lead investigator in relation to the sexual assault allegation, Det. Constable Lisa MacDonald. [14] The Crown has tendered a redacted transcript of Mr. Burns November 8 and 9, 2011 police statements [with consent of/waiverby the Defence]; and presented Cst. Parasram as its only witness. A number of exhibits were also tendered, as was an Agreed Statementof Facts, Exhibit VD-8, pursuant to s. 655 of the Criminal Code.

Position of the Parties Defence Position [15] The Defence argues Constable Flynn’s evidence contradicts the complainant’s suggestion that her outgoing text messages toMr. Burns on June 16, 2011 must have been automatically deleted as a result of limited memory space availability in her phone. Theysuggest that the only reasonable remaining conclusion is that she deliberately deleted them. [16] The Defence argues that Mr.

Burns was unaware of any potential police investigation or other reason why he should not have,on June 16, 2011, deleted all of the outgoing and incoming text messages between he and the complainant. He also deleted all othersocial media site contact references between the two at that time. [17] In

summary, the Defence position is: had the text messages not been deliberately deleted by the complainant before her phonewas provided to the police, her phone would still contain them, and they would be able to be reproduced by the Crown and provided asdisclosure to the Defence. The Defence suggests the Supreme Court of Canada decision in R. v. Carosella, (SCC),[1997] 1 S.C.R. 80 is applicable, and that therefore there is a breach of s. 7 regarding Mr. Burns’ inability to make full answer anddefence as a result of the deliberate destruction of those text messages. The Defence further argues that had Cst.

Parasram seized, or atleast viewed, KJA’s phone on June 17 – 18 when he met her as the initial police contact, he would have preserved or at least haverecorded, the content of KJA’s texts to Mr. Burns. Not having done so is unacceptable negligence on his part. [18] The Defence notes that, as Justice Abella stated for the court in R. v. Telus Communications Co., 2013 SCC 16 at paragraph 5:“text messaging is, in essence, an electronic conversation”. Consequently given that only the incoming text messages from Mr.

Burns areavailable on the complainant’s mobile phone, the Court only has one side of the “conversation.” Therefore, it would unduly compromisehis right to have a fair trial, to permit a jury to consider Mr. Burns’ text messages as evidence, based on R. v. Harrer (SCC), [1995] 3 SCR 562. [19] The Defence argues that if the Court concludes: A. The complainant deliberately destroyed her text messages to Mr. Burns; B. The destruction of those texts was designed to “defeat the processes of the court”; C. The destruction of those text messages obstructed the course of justice; or D.

The complainant subsequently lied under oath at the preliminary inquiry regarding the manner in which the text messages were lost; then, a stay of proceedings is the appropriate remedy, citing R. v.

Babos, 2014 SCC 16 where the Court, at para. 31: “… recognized that there are rare occasions – “the clearest of cases” – when a stay of proceedings for an abuse of process will bewarranted… These cases generally fall into two categories: one – where state conduct compromises the fairness of an accused’s trial [the“main” category]; and two – where state conduct creates no threat to trial fairness, but risks undermining the integrity of the judicialprocess [the “residual” category]. [20] At this juncture, for completeness, I would add the entirety of paragraphs 32 and 33: 32 The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of threerequirements: 1) There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested,perpetuated or aggravated through the conduct of the trial, or by its outcome" (Regan, at para. 54); 2) There must be no alternative remedy capable of redressing the prejudice; and

3) Where there is still uncertainty over whether a stay is warranted after steps 1) and 2), the court is required to balance the interests infavour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest thatsociety has in having a final decision on the merits" (ibid., at para. 57). 33 The test is the same for both categories because concerns regarding trial fairness and the integrity of the justice system are oftenlinked and regularly arise in the same case.

Having one test for both categories creates a coherent framework that avoids "schizophrenia"in the law (O'Connor, at para. 71).

But while the framework is the same for both categories, the test may -- and often will -- play outdifferently depending on whether the "main" or "residual" category is invoked [21] The Defence argues that a stay of proceedings pursuant to Section 24 (1) of the Charter of Rights, as opposed to exclusion of theevidence, is most appropriate because “this case involves prejudice to the accused’s right to a fair trial and an affront to the integrity ofthe justice system”. [22] If the Court finds that exclusion of the text messages evidence is appropriate pursuant to Section 24(1) of the Charter of Rights[see Justice Rothstein’s comments for the Court in R. v.

Bjelland 2009 SCC 38 , 2009 S.C.C. 38 at paragraphs 18 – 20, 23 and26], the Defence argues that any references in Mr. Burns videotaped statement to the police should also be excluded because there is atemporal and contextual connection between the tainted text messages and the statement of Mr. Burns –R. v. Wittwer, 2008 SCC 33.

Position of the Crown [23] The Crown argues that the Defence’s reliance on the Supreme Court’s decision in Carosella is misplaced because that case isdistinguishable; viz. the evidence there was deliberately destroyed by a third party agency. [24] I should interject here that it appears from a reading of the majority decision that they were well aware of this distinction, whichwould apply if the Stinchcombe standard of disclosure were in issue, but that they went on to find that even on the lesser O’Connorregime standard of production of records in the hands of third parties: It is clear that the file would have been disclosed to the Crown…even if the somewhat higher O’Connor standard relating to productionfrom third parties applied, it was met in this case.

Once the material satisfied the relevance test of O’Connor, the balancing required inthe second stage of the test would have inevitably resulted in an order to produce; confidentiality had been waived by the complainantand the Crown consented to production” – para. 41 per Sopinka J. [25] Importantly however, not only the majority, but also the minority, found that although the sexual assault crisis center is a third-party, which had no obligation to preserve evidence for prosecutions or otherwise, nevertheless: Essentially, in these circumstances, the Charter is engaged by the fact of the prosecution itself.

Where the Crown pursues aprosecution which would result in an unfair trial, this constitutes State action for the purposes of the Charter. This situation differsconsiderably from that in which the accused merely makes a request for disclosure from the Crown.

It remains to determine the standardwhich should be applied in answering in the key question at issue in this case: when does the unavailability of material previouslyheld by a third party translate into a violation of an accused’s rights?” Paragraph 70 per L’ Heureux –Dubé, J. [my emphasis added] [26] On closer review therefore, the general principle that emerges, is that the Charter may be engaged by the mere fact of theprosecution proceeding, and specifically that if the Crown pursues a prosecution which would result in an unfair trial, as a result of theunavailability of material and relevant evidence, this constitutes State action for the purposes of analysis of an alleged breach of anaccused’s rights under the Charter of Rights. [27] Regarding the Defence argument that the unavailability of KJA’s text messages to Mr.

Burns creates a significant unfairnessleading inevitably to a finding of a breach of

Section 7 of the Charter [i.e. full answer and defense], the Crown argues that the evidencedoes not support the suggestion that the complainant intentionally deleted her outgoing text messages to Mr. Burns. [28] They also dispute that the loss of KJA’s text messages renders the trial otherwise so “unfair” as to constitute a breach of Section7 of Mr. Burns’ right to make full answer and defense. More specifically, they argue that the loss of the evidence of the complainant’soutgoing text messages to Mr.

Burns is not so prejudicial as to justify a stay of proceedings or exclusion of the evidence. [29] They point out that, although the Supreme Court of Canada acknowledged in Bjelland the test under Section 24(1) requires thatan accused establish that their trial would be “unfair”, in order to seek a stay of proceedings or exclusion of evidence, specifically a Courtmust be satisfied that: 21… [In relation to the Crown’s failure to disclose evidence] an accused must generally show “actual prejudice to [his or her]ability to make full answer and defence”(R v O’Connor (SCC), [1995] 4 S.C.R. 411 at paragraph 74) in order to beentitled to a remedy under Section 24(1). … 23 Apart from ensuring trial fairness, there is one other circumstances in which late disclosed evidence might be excluded.That is where to admit the evidence would compromise the integrity of the justice system.

… 25 As L'Heureux-Dubé J., for the majority, stated in O'Connor , at para. 83 : In such circumstances [of late or insufficient Crown disclosure and a consequent s. 7 breach], the court must fashion a just and appropriate remedy, pursuant to s. 24(1) . Although the remedy for such a violation will typically be a disclosure order and adjournment, there may be some extreme cases where the prejudice to the accused's ability to make full answer and defence or to the integrity of the justice system is irremediable.

In those "clearest of cases", a stay of proceedings will be appropriate. 26 … Of course the prejudice complained of must be material and not trivial . For example, the exclusion of evidence may be warranted where the evidence is produced mid-trial after important and irrevocable decisions about the defence have been made by the accused. Even then, it is for the accused to demonstrate how the late disclosed evidence would have affected the decisions that were made.

For purposes of trial fairness, only where prejudice cannot be remedied by an adjournment and disclosure order will exclusion of evidence be an appropriate and just remedy. [my emphasis added] [ 30 ] The Crown thus argues that the Defence has not met the high threshold for the unfairness required [see also Justice Fish’s dissent, Binnie and Abella JJ concurring, at paragraphs 43 – 47]. Assessment of the evidence before the court [ 31 ] To recap, in support of its application for a stay of proceedings, or exclusion of evidence, pursuant to s. 7 of the Charter of Rights or s. 11(

d) of the Charter of Rights, the defence presented the testimony of KJA, the complainant, Cpl. Duane Flynn’s expert evidence, and the testimony of Detective Constable Lisa MacDonald, the officer in charge of the investigation. The defence also presented exhibits. In response, the Crown called the evidence of Constable Amit Parasram, and tendered Mr.

Burns’ redacted police statements. [ 32 ] Counsel also presented the Court with an Agreed Statement of Facts. [ 33 ] The credibility or believability of a witness is comprised of two major components: their honesty in attempting to testify to the best of their ability, and the reliability of their testimony. [ 34 ] In assessing credibility, a court may believe all, none, or some, of a witness’ evidence. It is entitled to accept parts of a witness’s evidence and reject other parts. It can accord different weight to different parts of the evidence that it has accepted.

It should examine the testimony for its internal and external consistency. The testimony of Constable Amit Parasram [ 35 ] After 10 months of training, he has been an officer with HRP (Halifax Regional Police) since June 20, 2010. His testimony was credible. [ 36 ] At 9:01 p.m. on June 17, 2011, he was dispatched to the QEII hospital in Halifax in response to a call by one of the sexual assault nurse examiner (SANE) staff, that a so-called “rape kit” was ready for pickup. He did not expect to encounter the complainant there, but was not unduly surprised that she was still there when he arrived at 11:01 p.m.

He spent approximately one hour with the complainant and her sister. He seized the “rape kit” at 12:16 a.m., and at 12:55 a.m. telephoned the complainant, which led him to recover items of clothing at 1:17 a.m. Those garments were considered to be a potential source of evidence, which he considered could be lost or compromised if not seized. [ 37 ] While he met the complainant at the hospital, he became aware that there were text messages between Mr. Burns and the complainant relevant to this offence, and that they were characterized as Mr.

Burns apologizing and suggesting that they move on. [ 38 ] He indicated that he did record the mobile phone numbers for the complainant, 902–240–855X; as well as for Mr. Burns, 902– 791–0421. He did not seize the phone because as the initial investigator, in cases of sexual assaults, they are trained not to take statements from victims, but rather only gather preliminary information that then can be forwarded to the major crime unit, whose investigators will contact complainants and then carry out a formal investigation.

He noted that this limited level of preliminary involvement, was not however intended to prevent him as an initial investigator from seizing evidence that could be lost, or the integrity of which would otherwise be compromised if not seized. [ 39 ] He was asked why he did not either seize the complainant’s phone, or at least view the images and record in writing their content, including date and time, when he had the opportunity to do so in the early morning hours of June 18, 2011. [ 40 ] He responded that he did not seize the phone because he was not the ultimate investigator, and because it was the complainant’s phone.

He could not recall viewing the phone/texts, but noted that he would have made a record of that if it had happened. [ 41 ] I infer that he did not consider the continued existence of the text messages to be at risk. Other potential sources did exist to retrieve the text messages: seizure of Mr. Burns’ phone; possibly the records of the service providers. He did not recall telling the complainant to preserve the messages, and I infer that he did not do so.

I further infer that he did not do so because he knew that the complainant continued to require the phone, and he could reasonably expect her to want to preserve the text messages. He also knew that a major crime unit investigator would be contacting the complainant within a short period of time, and they would then have the opportunity to seize the telephone. [ 42 ] KJA testified that, after meeting with the Constable, that she intended to provide the telephone to the police. In direct examination, she confirmed that the text messages she had sent to Mr.

Burns were still on her telephone when she met with the Constable

: “Q -And as of Friday, June 17, when you spoke with Constable Parasram, the text messages that you sent to Mr. Burns on June 16 were still on that telephone. Correct? A- Correct” – pg. 17 (12) transcript August 6, 2014 [ 43 ] In cross examination, she confirmed that she did not recall exactly when the text messages that she had sent to Mr. Burns were no longer on her phone, so that at the time she met with the constable she did not know whether those texts were still on her phone: “Q-… those messages could have been deleted any time after June 16. Is that your understanding? A- Correct Q-Okay.

So you don’t actually recall when those text messages you sent to Mr. Burns were no longer on your phone? A- That’s correct. Q-Okay. So at the time that you met with Constable Parasram on the evening of June 17, is it fair to say you have no idea whether or not the texts you sent to Mr. Burns were even on your phone? A- I don’t know.” –pg. 84(5) transcript. [ 44 ] In redirect, Mr.

MacDonald asked KJA to refer back to her preliminary inquiry evidence which went as follows: “Q-Well, if you, as of the time that you decided to go to the police… which apparently would have been sometime Friday evening… A- Yes Q-… Were your text messages to Tim Burns still on your telephone? A- Yes. Q-They were? A- Yes.” [ 45 ] He then asked KJA on August 6, 2014: “Q-you agree that you said that at the preliminary inquiry? A- Yes.… Q-Your testimony, at that point, was unequivocal. Correct? A- Correct.

Q-And, in fact, I asked you that earlier today; if, in fact, your text messages to Tim Burns were still on the telephone when you met with Constable Parasram. A- Right. Q-Are you changing that? A- I’m not changing that. I just didn’t remember today, having been three years after. Q-What do you mean? What did you remember? A- I don’t remember if… today, sitting here, I did not remember exactly if the messages were on my phone, so I did not say “yes” or “no”. I think I said I didn’t know .

Q-But I believe you testified in direct examination that you did know that, in fact, they were on your phone when you went to see Constable… … Q-… I asked you if, when you had seen Constable Parasram, your text messages to Tim Burns of June 16 were still in your phone. And you said “yes” A- and what was my response? Q-You said “yes”

A- “Yes”? Okay. Q- So what is your evidence on this point ? A- Did I say “yes” earlier this morning, and I said “yes” here ? Q- Yes . A- Then I guess the answer is “yes”. – pp.86-88 transcript. [my emphasis added] [ 46 ] In direct examination KJA also stated: “Q-… So you met with Constable MacDonald, provided an audiotape – videotaped statement. During the time that you talked to Constable MacDonald, were the text messages that you exchanged with Mr. Burns on June 16 still on the telephone? A- Are you asking if my messages were still there or if his messages were still there? Q-All of the messages.

A- I don’t recall if all the messages were still there. Q-Okay. And do you… So do you specifically recall if the text messages sent by Mr. Burns to you were on your telephone on June 23 ? A- Yes, they still were . Q-Okay. Do you recall if the text messages that you sent to Mr. Burns on June 16 were still on your telephone then ? A- I do not recall ” – p.22 transcript, August 6, 2014. [my emphasis added] [ 47 ] Neither the testimony of Constable Parasram, nor that of KJA, suggest that on June 17 – 18, 2011, Constable Parasram requested to see her telephone or saw any of the text messages thereon.

I find as a fact that it is so. Detective Constable Lisa MacDonald [ 48 ] She has been a police officer for 17 years, and with the HRP sexual assault

section of the Major Crime Unit since June 2011. She had her first brief contact with the complainant on June 21, 2011 when she was assigned the case. A meeting was set up for June 23. In preparation, she reviewed the initial investigator’s report which included references to text messages from Mr. Burns “apologizing for an incident that took place and that they should move on”. [ 49 ] She met KJA on June 23, 2011, and took a videotaped statement from her. The complainant consented to having her phone analyzed and the phone was seized.

There is divergent evidence apparent as to when the phone was seized. [ 50 ] At this juncture, I note that in relation to when her phone was seized, KJA stated in her direct testimony: “Q-… when did you turn that telephone over to the police in 2011 ? A- I don’t know the exact dates. Sorry. Q-Just to refresh your memory on that, you indicated at the preliminary inquiry in November 2012 that you turned it over to Lisa MacDonald on the day that you were interviewed by her. A- I did turn it over to Lisa MacDonald . Q- And was that on the day that you provided your statement to her ? A- I honestly… can’t recall .

Q-You can’t recall. A- No. But if that’s what I said in my original statement, then that’s still true. Q-And I can tell you that you were interviewed by Lisa MacDonald on June 23, 2011. A- Okay

Q-All right. Now, do you recall when you got the telephone back from Constable Lisa MacDonald? A- No, I do not. Q-It was analyzed in September 2011, by Cpl. Flynn. Does that refresh your memory as to when you may have gotten it back? A- No. Q- Do you have any recollection of when you got it back ? A- No . Q-Did you get it back? A-Yeah.” – pp. 12 – 13 transcript August 6, 2014. [my emphasis added] … Q- And if you look through those records [Exh. VD-1]… there are text messages sent and received from your telephone…. Right up until June 28 th . Any explanation for that? A- No.

B- Do you believe that you may have turned your phone over to the police on June 28 th ? C- Possibly [p. 77 transcript] [ 51 ] Generally, I found Cst. MacDonald’s evidence credible. [ 52 ] Constable MacDonald testified that KJA had her phone with her when she gave her videotaped statement on June 23, 2011. She stated that the complainant consented to having the phone seized that day and later analyzed. Constable MacDonald does not recall if she took the battery out of the phone.

I infer that she did not do so, because she had made no notation of it, did not recall it by memory, and it is something that if she did so, she would likely have recorded it. Cpl. Flynn testified that to preserve the evidence on a mobile phone one should remove the battery, so that there is no interference from other electrical devices or the Internet. [ 53 ] A review of exhibit VD-1, shows calls were made from and received by that telephone up until June 28, 2011. [ 54 ] Had the battery been removed on June 23, 2011, before Constable MacDonald turned it over to Cpl. Flynn in the technology

section on June 28, 2011, (where he placed it in a shielded room, preventing any interference with the phone) the phone would have been inoperable. Perhaps, “incoming calls” might still register in the Bell Aliant records-exhibit VD 1.

Thus, the existence of “incoming” calls showing in exhibit VD 1 between June 23 and July 2, 2011 do not necessarily mean the phone was still operable during that time. [ 55 ] While one might expect there to be such a record of “incoming” calls from other phones showing in exhibit VD 1, one would not expect there to be any further record of outgoing calls or texts made (sent) after June 23, 2011, if the phone had been seized on June 23, 2011, regardless of whether the battery had been removed or not. [ 56 ] An examination of exhibit VD-1, reveals that both outgoing telephone calls and text messages were made and sent respectively from the complainant’s phone (19 telephone calls ending at 9:56 a.m.

Eastern Standard Time June 28, 2011; 94 text messages the last one being sent at 8:52 a.m. Eastern Standard Time June 28, 2011) . [ 57 ] Although I did not have the benefit of testimony from properly qualified personnel at Bell Aliant to interpret them, the Bell Aliant records, which have been produced and relied upon as reliable by both parties, suggest that Constable MacDonald did not seize the complainant’s mobile phone until June 28, 2011. Given the complainant’s general reference to it being turned over to Det. Constable MacDonald, and the fact that Det.

Constable MacDonald testified that she did not turn the phone over to the technology

section until June 28, 2011, I find it more likely than not that the phone was not seized and rendered inoperable until June 28, 2011 (as also confirmed by Det. Constable MacDonald’s “Assistance Request Technological Crime” form dated June 28, 2011), and that day it was turned over to Cpl. Flynn, who rendered it inoperable and shielded from outside interference until his return of it to Det. Constable MacDonald on September 30, 2011. [ 58 ] Moreover, on a review of the evidence, I am satisfied, it is more than likely than not, that the complainant’s text messages to Mr.

Burns remained undeleted on her phone at the time she encountered Constable Parasram. [ 59 ] The messages in issue were sent by KJA around 12:00 noon on June 16, 2011. She met the Constable around midnight June 17 – 18, 2011. Given the short interval, it is not likely that any auto delete function in the phone would have deleted her messages to Mr.

Burns between June 16 and June 18, 2011. [ 60 ] A review of the complainant’s testimony, referred to above, that she stated at the preliminary inquiry that her text messages remained undeleted on her phone on June 17, 2011, and her acceptance on August 6, 2014 that “then I guess the answer is ‘yes’”, which I find credible, also supports my conclusion. [ 61 ] More controversial is how and when those text messages were deleted.

The testimony of KJA [ 62 ] At this hearing K JA was called by the defence counsel, who requested, and with Crown consent, was permitted, to ask leading questions. [ 63 ] Is it more likely than not that KJA deliberately deleted her own text messages to Mr. Burns regarding the alleged offence? (

a) Did the evidence of KJA about this change over time, and specifically within her own testimony? [ 64 ] Defence counsel extensively examined her. The excerpts attached as Appendix “A” hereto are of note. [ 65 ] In assessing whether K JA’s evidence varied as between her preliminary inquiry evidence, and that of August 6, 2014, and whether it varied as between the entirety of her testimony on August 6, 2014, the appropriate starting point is those aspects that defence counsel have focused upon. [ 66 ] Defence counsel suggested that KJA’s testimony changed as follows: 1.

Initially she testified generally that solely the auto delete function of the phone was responsible for deletion of all text messages from her phone, which were not present on her phone when examined by Cpl. Flynn; 2. Then she testified specifically that after she noticed there were text messages absent on her phone, which she would have expected to be present, leading her to conclude that the phone was auto deleting, she began to manually delete other text messages, in order to preserve the text messages sent to her by Mr. Burns; and 3.

Finally, she conceded that she would likely have deleted manually “a large number” of text messages from her phone after June 16, 2011, in order to preserve the text messages sent to her by Mr. Burns. [ 67 ] Defence counsel also suggests that during her testimony she was evasive and selective in some of her specific responses, which render her testimony less credible. [ 68 ] Defence counsel submits that K JA deliberately lied, in her testimony, both at the preliminary inquiry hearing and during this hearing.

Counsel argues that should the court make such a finding, then based upon the evidence that the court does accept , it should properly conclude that KJA deliberately deleted from her phone her text messages to Mr. Burns. [ 69 ] A review of Appendix ``A`` reveals that: 1. At the preliminary inquiry in November 2012 when she was asked for “any explanation” for why there were no text messages from her to Mr. Burns on her phone, she testified that the auto delete function on her phone would cause deletions “because the memory is only so large”.

She also testified at the preliminary inquiry in response to the question, “incoming text messages delete outgoing text messages…: Q. - But does it not delete other incoming messages like messages that have come in earlier?; A. -Yes, but I was trying to keep my phone clear… I wanted to keep messages clear so that I could keep a hold of the messages from Mr. Burns”. She was also asked “so then how in the world did those text messages from you to him disappear?”, and answered: “I have a lot of friends…”. Collectively these answers are representative of her position.

As she pointed out in her testimony on August 6, 2014, at the preliminary inquiry she was not specifically asked if she deleted text messages from her phone, other than those she sent to Mr. Burns; and in relation to those she specifically denied deleting them. She also made reference to her manual deletion of text messages on her phone when she testified “I was trying to keep my phone clear… I wanted to keep messages clear so that I could keep a hold of the messages from Mr. Burns”.

Her reference at the preliminary inquiry to “I have a lot of friends”, was linked to her testimony on August 6, 2014 by explaining that; “I meant that people were texting me… [Q-Meaning that as you received all those texts, then those text messages to you from you to Tim Burns, automatically deleted?] Yes”. Moreover, she stated: “I didn’t use the word “deleted”, but I did say that ‘I tried to keep my messages clear’” I conclude that KJA’s testimony on these points as between the preliminary inquiry and the hearing before me are not inconsistent, in the strict sense of the word.

She mentioned both that the auto delete function and her “trying to keep my phone clear” manual interventions were responsible for text message deletions from her phone. 2. When specifically asked on August 6, 2014, she gave greater detail. She was also asked: ``Q - And when you started your testimony today, you didn’t think that you had ever deleted any text messages; A- I couldn’t recall anything ”.

She was asked: “Q-the subject of deletion of text messages from your telephone by automatic means was discussed at length on November 20, 2012… And that didn’t refresh your memory about you having deleted any text messages?; A- I feel like I wasn’t questioned about that topic”. She admitted that she had manually deleted text messages, but was adamant that she did not do so in relation to any text messages between herself and Mr. Burns. She testified that: “once it had deleted those messages [her texts to Mr.

Burns] I started to delete incoming messages… I can’t testify that I deleted all of them [June 17 – June 23, 2011], but I did delete some of them [how many messages did you delete?] I don’t know”. When she was asked why she would not have earlier remembered the deletion of over 300 text messages in the. June 17 – June 23, 2011, she testified: “I wouldn’t say that [i.e. that she shouldn’t have had any difficulty remembering that number of text messages without being prompted]. It’s not like you sit down and delete all of them.

You delete them as they come in.” As to when she noticed that the phone had deleted all the messages, she testified at the preliminary inquiry, and adopted at trial her answer, that it was “when I gave the phone to [Det. Constable] Lisa MacDonald.” She also testified that she decided she wanted to retain the text messages

for the police after she spoke to Constable Parasram around midnight June 17 – 18 2011. Thus, at some uncertain point forward she would have been vigilant in attempting to keep her phone clear by manually deleting any text messages that weren’t automatically deleted by the phone. She reiterated that she had to keep her phone on for work purposes, and “didn’t realize that it would delete all of the messages” until she gave the phone to Det. Constable Lisa MacDonald.

I conclude that, as noted above, KJA had introduced the subject of manual deletions by herself at the time of the preliminary inquiry, and that her more specific answers on August 6, 2014 do not lead to a finding that her testimony was inconsistent as between the preliminary inquiry and August 6, 2014 on this point. I bear in mind that the uncontradicted evidence of KJA, which I accept, is that she has not seen the results of the September 30, 2011 forensic analysis of her phone by Cpl. Flynn [page 23 (1) transcript August 6, 2014].

Thus, it is likely that, both at the time of the preliminary inquiry and on August 6, 2014, she would not have fully appreciated the importance of the deletion of text messages other than those as between herself and Mr. Burns. 3. My latter comment may also explain, in part, why until defence counsel’s questions referencing the large number of her manual deletion of text messages after June 16, 2011, KJA`s attention may not have been focused upon those deletions. Moreover, her consistent testimony is that the phone`s auto delete feature, and her manual deletions accounted for the deletion of text messages.

She has consistently testified that the text messages she sent to Mr. Burns were not manually deleted by her, thus inferentially they must have been deleted by the auto delete feature of her phone. [ 70 ] I conclude that KJA’s testimony, as between the preliminary inquiry hearing and the August 6, 2014 hearing, is not inconsistent, as suggested by the defence. I bear in mind that at this hearing, defence counsel had the continuous opportunity to cross-examine its own witness, the complainant in this case, by asking leading questions. The defence stated its position in writing in its pre-hearing brief.

The defence was attempting to elicit answers from KJA, that would tend to demonstrate that she deliberately deleted her text messages to Mr. Burns, and deliberately lied at the preliminary inquiry hearing. While I found KJA’s testimony could, at times, be seen as “defensive”, her answers were generally responsive to the questions asked, but also reflected an intention to answer questions with no more elaboration than necessary.

Moreover, even on their face, her answers are not inconsistent. [ 71 ] I find that the testimony of KJA was not inconsistent as between the preliminary inquiry hearing and the hearing on August 6, 2014, or within the confines of her testimony on August 6, 2014. (

b) Is the evidence of K JA externally consistent with the other evidence which I accept? [ 72 ] At this juncture, I will summarize my factual findings thus far. An incident occurred between K JA and Mr. Burns in the early morning hours of June 16, 2011 at his apartment. The allegation is that he had nonconsensual sexual intercourse with her at a point when she was heavily intoxicated. In response, she sent text messages to him, and he to her, in the early afternoon of June 16, 2011.

KJA went to the QE2 hospital where she was assessed by SANE (sexual assault nurse examiner) nurses who called HRP to come and retrieve a so-called “rape kit”. Constable Parasram was dispatched, and had contact with KJA at the hospital for approximately an hour around midnight June 17 – 18 2011. KJA had her phone with her. The Constable did not request to see her phone or seize it. At that time all the text messages between K JA and Mr. Burns remained visible on her phone. The Constable did seize her items of clothing at approximately 1:17 AM on June 18, 2011.

On June 21, the date of her assignment to the case, Detective Constable Lisa MacDonald contacted KJA and a meeting was scheduled for June 23, 2011. On the latter date KJA provided a statement to Det. Constable MacDonald. By that date, all of the text messages from KJA to Mr. Burns were no longer visible on her phone. Although KJA testified that she could not specifically recall when her texts to Mr. Burns were deleted, she did state that they were deleted before “I gave the phone to Lisa MacDonald”. Det.

Constable MacDonald testified that she could not recall if on June 23, 2011, she had seen text messages on KJA’s phone, but did recall KJA said that her texts to Mr. Burns were no longer there, “but not why”. KJA showed her phone to Det. Constable MacDonald at that time, but did not turn it over for seizure by Det. Constable MacDonald until June 28, 2011. Shortly thereafter, Det. Constable MacDonald placed the phone in a shielded room in HRP office space. On September 30, 2011, the phone was examined by a member of the technology section, Cpl. Duane Flynn. He returned the phone to Det.

Constable MacDonald that same day, who in turn returned the phone to KJA. The whereabouts of the phone at present are unknown. KJA did later begin to use a different phone. [ 73 ] Defence counsel sought to rely on the expert opinion and findings of Cpl. Duane Flynn who was qualified to give an opinion evidence regarding the “forensic analysis of cell phones and computer systems for the recovery of data”. His CV is Exhibit VD-3. [ 74 ] In a nutshell, the defence suggests that Cpl. Flynn’s evidence puts the lie to KJA’s testimony that she did not deliberately delete her text messages to Mr.

Burns. [ 75 ] His evidence was uncontradicted that, once the phone was turned over to Det. Constable MacDonald, and placed in a shielded room, whatever text messages were present on the phone would be able to be retrieved. Thus, the state of the phone on June 28, 2011 would have been preserved and available for his analysis. On September 30, 2011, he retrieved text messages from KJA’s phone by way of screenshots of those messages using the ZRT technology.

Extraction of data otherwise was not possible with the technology he was then using. [ 76 ] On June 28, 2011, the only text messages that remained on K JA’s phone, were the following: June 12, 2011 – Tim: Well you should be coming to hang out because I miss you and I’m leaving soon Tim: You should come visit for a bit before I leave Tim: BTW come visit tonight Tim: Well you need to come chill next week

Tim: BTW you need to come chill tomorrow at five Tim: I’m doing some painting today. I might be going to NB for the summer. Then Québec for all next year! Yay! When do you head south? Tim: Don’t worry about it, have fun! June 15, 2011 Tim: Rainnn Tim: Rawr ha ha I just got my bike fixed. Now I feel like I need fenders Tim: Why did you do your hair? Tim: Skid party? Working from good sounds good Tim: Don’t know. Is must be that msg I ignored on fb ha ha Tim: Hmm Tim: What does the 20 get ya Tim: I see June 16, 2011 Tim: I’m sorry [12:13 PM] Tim: I suck [12:14 PM] Tim: I know. I was hammered and crazy.

I understand completely and I hate myself. I hope that you are okay. I don’t expect forgiveness. [12:19 PM] Tim: Can we agree to part ways? I feel terrible about taking advantage of you and don’t want to be able to be a reminder of that hurt. I’m sorry and I hope that life turns out well [12:27 PM] Tim: I can’t agree more. Goodbye [12:34 PM] [ 77 ] There are seven texts from Mr. Burns to KJA on June 12, 2011. There are eight texts from Mr. Burns to KJA on June 15. There are five texts from Mr. Burns to K JA on June 16, 2011.

Exhibit VD-1 confirms that between 1:00 a.m. – 1:36 p.m., on June 16, 2011, KJA sent 13 text messages in total, to unidentified recipients. [ 78 ] Cpl. Flynn was asked whether it was more likely than not that text messages were manually deleted, and he concluded that it was the case in relation to K JA’s phone on the following bases: (

a) The fact that a comparison on June 12, 2011 of the Bell Aliant bill record VD-1 [showing 73 text messages that day] and the remaining seven text messages left on K JA’s phone, suggests 66 text messages were manually deleted. (

b) The fact that a comparison on June 16, 2011 of the Bell Aliant bill record VD 1 [showing 53 text messages that day] and the remaining eight text messages left on K JA’s phone, suggest 45 text messages (incoming and outgoing) were manually deleted. (

c) The fact that only some of the June 12 text messages were deleted, but all of the June 13 and June 14, and some of June 15 and some of June 16 text messages were deleted, suggest that it is more likely than not inconsistent with the auto deletion feature of the phone – or otherwise, it is more likely than not the result of manual deletion. (

d) A hypothetical was put to him. Of all the texts incoming arising on June 16, 2011, only the five text messages [1 message was split so there are actually six sent, but I will refer to them as five complete text messages] sent by Mr. Burns to KJA remain on her phone, but none of her messages that day are present on analysis.

He concludes it is more likely than not that KJA’s messages were deleted manually rather than by the auto deletion feature of the phone. [ 79 ] He noted that in all his examinations of cell phones, he has never seen one where only the texts from one person to another incoming are preserved, with no other outgoing or incoming texts surviving on the phone for examination. [ 80 ] In cross-examination, he conceded that in some of the older phones, such as of the same vintage as the Samsung Instinct, outgoing messages are deleted, before incoming messages are deleted, and that that might explain why Mr.

Burns’ messages incoming are present on K JA’s phone and her messages to him outgoing are not. However, he went on to state that the phone’s auto deletion would not account for why there are no other text messages at all present outgoing or incoming on KJA’s phone. He concluded “I would expect to see more texts outgoing”, and therefore also considered this outcome on KJA’s phone to be the product of manual deletion. [ 81 ] He also had the benefit of analyzing in August 2014 another Samsung Instinct mobile phone, VD-5, located at the household of KJA’s parents in August 2014.

He noted that text messages could be deleted on mobile phones generally either manually (maliciously or innocently] or automatically by the phone, usually if the “flash memory” of the phone was becoming exhausted. He acknowledged a

number of variables would affect whether and when phones would overwrite existing text messages(i.e. automatically delete), and in what order, including whether outgoing messages would be overwritten first. The other components of the phone that required flash memory would obviously reduce the available flash memory for text messages – for example: software, (initially installed by Samsung and possibly the service provider, and that later installed by the user by way of applications] photos and videos, call logs, contacts and calendar information.

The “in phone” memory usage to date(“used” versus “available”) could be viewed by checking under the “settings” in most phones. In a rough attempt to compare the “in phone” available capacity of VD-5 and KJA’s phone [which as I noted cannot be found] he concluded that KJA’s phone “should have been able to hold more than 22 text messages” before the auto delete function started to delete either incoming or outgoing messages.

He stated that “it would be abnormal” that there were only 21 text messages remaining on the phone he examined, which he presumed would have been the status of the phone when turned over to police, particularly since there were only messages from Mr. Burns to K JA on the phone. [ 82 ] He admitted that his opinion is vulnerable because he does not know what happened to the phone between June 16 when the messages were purportedly sent and received by KJA and Mr.

Burns, and its being placed in a shielded room at HRP office space [which I found to be as of June 28, 2011]. [ 83 ] He similarly conceded that he does not know what are the specific auto delete feature and parameters of the [Samsung Instinct] mobile phone that KJA had, which he analyzed on September 30, 2011. He agreed that a Samsung engineer or someone similarly familiar with the device would be required to provide such information to the court. [ 84 ] I find the testimony of KJA to be credible.

She testified that her phone, from her experience, had an auto delete function, which deleted outgoing text messages upon arrival of incoming text messages, and that at some point it would also delete incoming text messages. [ 85 ] She testified that: the auto delete feature deleted her text messages to Mr. Burns; she manually deleted numerous incoming and outgoing text messages otherwise, in order to ensure that the text messages from Mr. Burns were not auto-deleted from her phone. [ 86 ] I do not doubt the sincerity, and honesty, of Cpl. Flynn.

He did his best to assist the court in addressing the question of whether it was more likely than not that KJA manually deleted from her mobile phone her own text messages of June 16, 2011 to Mr. Burns. However, I find I cannot give much weight to his opinion. [ 87 ] He was qualified to give opinion evidence regarding the “forensic analysis of cell phones and computer systems for the recovery of data”. However, as he conceded, he is not familiar with the auto deletion feature of the Samsung Instinct mobile phone in question.

Therefore , he was only able to state his belief about the existence and operation of the auto deletion feature of the phone in issue in this hearing.

He was not able to give any reliable opinion about the operation of the auto deletion feature of the phone. [ 88 ] Therefore, a number of his answers to the questions put to him, as to whether was more likely than not that a number of factual circumstances were consistent with manual deletion of text messages, can be given little weight. [ 89 ] Moreover, I note that the weight that can be given to his opinion is also diminished by virtue of the fact that he did not appear to be aware that KJA admitted that she deliberately deleted incoming and outgoing text messages, other than her June 16, 2011 text messages to Mr.

Burns. His opinion in relation to the June 12, 13, 14, and June 15, 2011 messages that they were more likely than not “manually deleted” therefore really adds little to assist in determining whether KJA’s text messages to Mr. Burns on June 16 were manually deleted. [ 90 ] KJA’s manual deletion of incoming and outgoing text messages from before and after June 16, 2011 (in order to preserve the incoming text messages from Mr. Burns on June 16) could easily account for the odd distribution or absence of text messages observed by Cpl.

Flynn on KJA’s phone. [ 91 ] It was suggested to him that the phone was seized on June 23, 2011. However, his attention was not directed to the Bell Aliant record VD 1 , and what effect the numerous text messages sent and received between June 23 and June 28 would have had on an examination of the phone as of June 28, 2011, and by extension how that would impact on his opinions given at this hearing.

Presumably he would have to make certain assumptions about how many text messages were manually deleted, in order to opine on whether the auto deletion feature would have been prevented from being triggered, presuming that he was aware of the parameters of the auto deletion feature. [ 92 ] In conclusion, on its own , his opinion evidence is insufficient to establish that KJA manually deleted her text messages to Mr.

Burns as argued by the defence. [ 93 ] Having regard to KJA’s evidence, and an assessment of her credibility according to the established factors [see my comments in R v RDDG , 2014 NSSC 78 at para. 117] , I find her evidence internally consistent, and externally consistent with independent evidence that I accept. [ 94 ] Thus, I find KJA’s evidence, to be more likely than not credible in relation to whether she manually deleted her June 16, 2011 text messages to Mr. Burns. She did not manually delete her texts to Mr. Burns. The defence position Unacceptable Police Negligence – s. 7 Charter Violation [ 95 ] Mr.

Burns position may be summarized as follows: 1. The testimony of KJA was that she believed that her June 16 afternoon text messages to Mr. Burns were still present on her phone when she met Constable Parasram around midnight June 17 – 18 2011. During his one hour contact with K JA at the QE2 hospital the Constable became aware that there were text messages from KJA to Mr. Burns apologizing to her and suggesting they move on. He did

not request to see her phone, and the text messages thereon from her to Mr. Burns and Mr. Burns to her, nor did the Constable seize thephone at that time. The Constable did however seize clothing from KJA at 1:17 AM. Moreover, he did consider the existence of Mr.Burns text messages important enough to include in his initial investigators report (completed at 4:19 AM June 18, 2011). His report wasreviewed by Detective Constable Lisa MacDonald, of the major crime unit on June 21, 2011. She contacted KJA and set up a meetingfor June 23, 2011, at which time she took a videotaped statement from KJA.

KJA’s testimony was that she did not notice that her textmessages to Mr. Burns had vanished from her phone until she gave the phone to Detective Constable MacDonald. KJA testified that inorder to preserve the text messages from Mr. Burns to her, she deleted text messages from her phone between June 17 and June 23, 2011,the latter date which she understood to be when Detective Constable MacDonald seized her phone. She testified that: “I have no idea when they were deleted. Could have been any time between the 16th and 23rd” – page 59(20) transcript August 6, 2014 [I found as a factthat her texts to Mr.

Burns were deleted at some point between June 16 and 23, 2011. I also found as a fact that the phone was seized onJune 28, 2011 – the implication being that KJA continued to delete messages up to June 28, 2011]; 2. The defence submits that the Constable was unacceptably negligent in not either seizing the phone, or at least viewing the textmessages and recording them in his notebook, when he met KJA at the QE2 hospital – citing Justice Sopinka’s reasons for the majorityin R. v.

La (SCC), [1997] 2 SCR 680 at para. 17: This court recognized that the crown’s duty to disclose gives rise to an obligation to preserve relevant evidence in R. v. Egger (SCC), [1993] 2 SCR 451 at page 472, where we noted that the crown may be obliged to retain blood samples beyond thethree-month statutory period. In order to comply with the disclosure requirements resulting from Stinchcombe (No. 1); And at paras. 19 – 21: A similar principle was expressed in R. v.

Chaplin (SCC), [1995] 1 SCR 727 at para. 25: in situations in which theexistence of certain information has been identified, then the crown must justify nondisclosure by demonstrating either that theinformation sought is beyond its control, or that it is clearly irrelevant or privileged’. This obligation to explain arises out of the dutyof the crown and the police to preserve the fruits of the investigation. The right of disclosure would be a hollow one if the crownwere not required to preserve evidence that is known to be relevant.

Yet despite the best efforts of the crown to preserve evidence,owing to the frailties of human nature, evidence will occasionally be lost.… Where the crown’s explanation satisfies the trial judgethat the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached.Where the crown is unable to satisfy the judge in this regard, it has failed to meet its disclosure obligations and there has accordinglybeen a breach of s.7 of the Charter.

Such a failure may also suggest that an abuse of process has occurred, but that is a separate question.It is not necessary that an accused establish abuse of process for the crown to a fail to meet its s. 7 obligation to disclose. In orderto determine whether the explanation of the crown is satisfactory, the court should analyze the circumstances surrounding the loss of theevidence. The main consideration is whether the crown or the police(as the case may be) took reasonable steps in thecircumstances to preserve the evidence for disclosure.

One circumstance that must be considered is the relevance that the evidencewas perceived to have at the time. The police cannot be expected to preserve everything that comes into their hands on the off chancethat it will be relevant in the future. In addition, even the loss of relevant evidence will not result in a breach of the duty to disclose if theconduct of the police is reasonable. But as the relevance of the evidence increases, so does the degree of care for its preservation that isexpected of the police. [my emphasis added] The defence argues that a stay of proceedings, or an exclusion of Mr.

Burns text messages to K JA, including any reference thereto in hispolice statement are appropriate remedies. Deliberate Destruction of Evidence – s. 7 Charter violation 1. The defence argues that the evidence has shown that KJA deliberately deleted her own text messages of June 16, 2011 to Mr. Burns,and that she lied about that at the preliminary inquiry, and at this hearing. 2. The defence cites Justice Sopinka’s comments in R. v. Carosella (SCC), [1997] 1 SCR 80 at para. 26: The entitlement of an accused person to production either from the crown or third parties is a constitutional right.

See R. v.Stinchcombe… and R. v. O’Connor. Breach of this right entitles the accused person to a remedy under s. 24(1) of the Charter. At paragrah 36: The foundation for the crown’s obligation to produce material which may affect the conduct of the defense is that failure to do so wouldbreach the constitutional right of the accused to make full answer and defence.

As summarized in R v Egger… At paragraph 40: It follows from the foregoing that if the material which was destroyed meets the threshold test for disclosure or production, theappellant’s Charter rights were breached without the requirement of showing additional prejudice. And at paragraph 56:

The justice system functions best and instills public confidence in its decisions when its processes are able to make available all relevantevidence which is not excluded by some overriding public policy. Confidence in the system would be undermined if the administrationof justice condoned conduct designed to defeat the processes of the court. The agency made a decision to obstruct the course of justiceby systematically destroying evidence which the practices of the court might require to be produced. This decision is not one for theagency to make.

Under our system, which is governed by the rule of law, decisions as to which evidence is to be produced to admit it isfor the courts. It is this feature of the appeal in particular that distinguishes this case from lost evidence cases generally. The defence also relies upon, as instructive in relation to cases of unacceptable negligence regarding the crown’s duty to disclose, thedecision of the court in R. v. F.C.B., 2000 NSCA 35, particularly at para. 10. Right to a “fair” trial would be violated – s. 11(

d) Charter [96] Lastly, the defence relies upon the principles in R v. Harrer, (SCC), [1995] 3 SCR 562, which clarifies thateven in the absence of a breach of s. 7 of the Charter, accused persons may rely on the right in s. 11(

d) to a “fair” hearing. As explainedby Justice LaForest for the Court: 21- I should add that, had the circumstances been such that the admission of the evidence would lead to an unfair trial, I would have nodifficulty rejecting the evidence by virtue of the Charter. I would not take this step under s. 24(2), which is addressed to the rejection ofevidence that has been wrongfully obtained. Nor would I rely upon s. 24(1) , under which a judge of competent jurisdiction has thepower to grant such remedy to a person who suffered a Charter breach as the court considers just and appropriate.

Rather, I would rejectthe evidence on the basis of the trial judge’s duty, now constitutionalized by the enshrinement of a fair trial in the Charter, to exerciseproperly his or her judicial discretion to exclude evidence that would result in an unfair trial. 22-I shall, however, attempt to put more flesh on this approach because the argument was strongly advanced that since there was nobreach of the Charter in obtaining the evidence, a prerequisite to the power to exclude evidence under 24(2) of the charter, there was noCharter-based jurisdiction to exclude evidence.

The difficulty with this contention is that it fails to appreciate the full nature of a fairtrial. As I mentioned, while s. 24(2) is directed to the exclusion of evidence obtained in a manner that infringed a Charter right, it doesnot operate until there is a Charter breach.

What we are concerned with here is not the remedy for a breach, but the manner in which atrial must be conducted if it is to be fair. 23-The law of evidence has developed many specific rules to prevent the admission of evidence that would cause a trial to be unfair, butthe general principle that an accused is entitled to a fair trial cannot be entirely reduced to specific rules.… In Thomson Newspapers,supra, I attempted to explain that this approach as a necessary adjunct to a fair trial as guaranteed by s. 11(

d) of the Charter… I went onto further explain, as I had in Corbett, supra, that the common-law principle had now being constitutionalized by the Charter’s guaranteeof a fair trial under. 11(

d) of the Charter.… 24-The effect of s. 11(

d) then is to transform this high duty of the judge at common-law to a constitutional imperative… In a word, thereis no need to resort to s. 24(2) or s. 24(1) for that matter. In such circumstances, the evidence is excluded to conform to the constitutionalmandate guaranteeing a fair trial, i.e. to prevent a trial from being unfair at the outset. [97] I have not lost sight of the argument that an “abuse of process” would result if the text messages from Mr. Burns to KJA wereadmitted into evidence either on the basis that “state conduct” (i.e. the negligence of Cst.

Parasram has compromised the fairness of Mr.Burns’ trial); or where “state conduct” does not create an unfairness, but that the mere continuation of the prosecution “risksundermining the integrity of the judicial process” (i.e. the deliberate deletion of her text messages by KJA) – R. v. Babos 2014 SCC 16 atparas. 30 – 41; see also R. v.

Bjelland 2009 SCC 38 , [2009] 2 S.C.R. 651: “under s. 24(1), where the evidence was obtained inconformity with the Charter, its exclusion is only available as a remedy where its admission would result in an unfair trial, or wouldotherwise undermine the integrity of the justice system” per Rothstein, J. for the majority.] [98] The defence argues that Mr. Burns would be subjected to an unfair trial if his text messages to KJA, and any references in hispolice statement thereto, were admitted into evidence before the jury.

The defence argues that there has been a s. 7 Charter breach here[either the deliberate destruction of her text messages by KJA; or unacceptable negligence by the police in not preserving KJA’s textmessages to Mr. Burns when they had the opportunity to do so], but in any event there will be a s. 11 (

d) breach if that evidence isadmitted because the probative value is significantly outweighed by the prejudicial effect on Mr. Burns’ fair trial rights because “withoutthe full context” of KJA’s text messages to Mr. Burns, the jury will be left with an incomplete, and therefore dangerously distorted,picture regarding the meaning of Mr. Burns’ text messages to KJA. The position of the Crown [99] Its counsel argues that KJA did not deliberately destroy her text messages to Mr. Burns. He also submits that her text messagesto Mr.

Burns could have been auto-deleted before she encountered Constable Parasram around midnight June 17 – 18, 2011. If themessages were not there, there could not be any negligence by the Constable. [100] Even if the text messages were still there, the Constable did not act in an unacceptably negligent manner.

Moreover, counselquestioned whether the recognized duty to preserve evidence for disclosure purposes, extends to items such as the cell phone of KJA,which were not shown to, or handled, or seized by the police until some later point in time, during which interval the evidence had beenlost [in this case text messages from the phone]. [101] Crown counsel further submits that even if the court concludes that KJA deliberately deleted her text messages to Mr. Burns,

particularly if her motive was to preserve his text messages to her, and that there was unacceptable police negligence in not seizing herphone on June 18, 2011, there is nevertheless no sufficient prejudice to the fair trial rights of Mr. Burns, such that the evidence should beexcluded or a stay of proceedings granted. He suggests that KJA had no more duty to preserve evidence than did Mr.

Burns, who alsodeleted all text messages, from and to KJA, from his mobile phone on June 16, 2011, long before he was contacted by police on July 21,2011. [102] Crown counsel argues in relation to the “fair trial rights” aspect, including the implications in R. v. Harrer, that the probativevalue of Mr. Burns’ text messages to KJA outweighs the prejudicial effect on his fair trial rights, because although the jury will onlyhave his portion of the “conversation”, the jury will also hear from KJA as to her recollection of her text messages to Mr. Burns whichprompted his responses.

KJA will be cross examined on her recollection. Mr. Burns police statement will be put before the jury, inwhich he acknowledges the content of some of her text messages to him. The Crown relies on a number of cases dealing with theadmissibility of, for lack of a better word “partial statements” – R. v. Ferris (SCC), [1994] 3 SCR 756; R. v. Yates 2011ABCA 43; R. v. MNP 2012 MBQB 61; R. v. Soulliere [2013] OJ No. 3174 (Prov. Ct.) R. v. Rafferty 2012 ONSC 742.

Counselsuggests that the concern regarding fairness is more properly oriented to scrutinizing situations of “partial statements” by a person asopposed to “partial conversations”, the latter of which we have in this case. [103] In

summary, Crown counsel suggests that, the admission of Mr. Burns’ text messages to KJA will not render his trial unfair. A Question by the Court to Counsel [104] At the hearing I also inquired of counsel, regarding their positions on whether, presuming the text messages, and associatedreferences in Mr. Burns police statement, were not permitted into evidence, would KJA and Mr. Burns (if he testified) in their testimonyat trial, still be entitled to refer to the text messaging in any event based on their recollection of the text message contents? I indicated tocounsel that Justice Abella at para. 5 in R. v.

Telus Communications Co., 2013 SCC 16, stated: “Text messaging is, in essence, anelectronic conversation. The only practical difference between text messaging and the traditional voice communications is thetransmission process.” However, I note that if Mr. Burns and KJA had spoken on the telephone, there would be no record of what theysaid, and at trial they would both be permitted to, and have to, testify from recollection as to what they said. [105] Crown counsel took the position that KJA, and Mr.

Burns if he testified, should be entitled to refer, from recollection, to the textmessages sent and received by each of them. He noted that in his police statement it is Mr. Burns who brings up the text messages.Thus, if the exclusion of Mr. Burns’ text messages (and any references in his police statement) was not prompted as a result of any Stateconduct, therefore there is no reason to exclude the witnesses from referring to the text messages. I observe here that I only have aredacted copy of Mr. Burns’ police statements in evidence.

There are no references therein to support the Crown assertion that Mr.Burns was first to bring up his text messages. [106] Moreover, Crown counsel says the evidence is highly probative, since it is Mr. Burns’ statements regarding the time of allegedincident. Counsel further argues any prejudice to the fair trial rights of Mr. Burns, would be minimal since effectively KJA, and Mr.Burns if he testifies, will be on equal ground, if the evidence (the text messages as visible on the phone and referred to in Mr.

Burns’police statement) is excluded, but the witnesses are still permitted to testify as to their recollection of the text messaging between KJAand Mr. Burns. [107] Defence counsel took the position that “it’s all or nothing”. He suggested that KJA had an advantage because she could refreshher recollection from Mr. Burns’ text messages to her. Mr. Burns did not have that advantage in relation to the text messages from her tohim. I observe here that Mr. Burns’ recollection of what was said June 16, 2011, was not prompted to attention until he became aware ofthe police investigation on July 21, 2011.

KJA would have preserved her recollection by way of her police statement given June 23,2011. [108] Defence counsel also expressed a concern that there is a danger that witnesses will refer to the excluded real evidence, namely themobile phone and text messages thereon, which given the circumstances at trial at the time could require a mistrial be declared.

Should the defence motions, made pursuant to ss. 7, 11(d) , 24(1) and the common-law jurisdiction of the court to control its ownprocess, be permitted and an abuse of process be found, or alternatively evidence excluded? [109] It may be helpful to summarize my factual findings to this point. [110] I found that KJA’s phone was seized by Det. Cst. MacDonald on June 28, 2011, and that KJA did not deliberately (manually)delete her text messages of June 16, 2011, to Mr. Burns. [111] KJA alleges a sexual assault by Mr. Burns in the early morning hours of June 16, 2011.

That afternoon there was an exchange oftext messages between the two. Around midnight June 17 – 18, 2011, KJA was at the QEII hospital. SANE nurses had collected a so-called “rape kit” and requested police attend to seize it. Constable Parasram attended, and spent one hour with KJA and her sister. Hebecame aware that Mr. Burns had sent text messages to KJA apologizing and suggesting that they move on. He did not seize her phoneor request to see her phone (which might allow him to view the text messages on her phone, and to make a written copy of them in hisnotebook).

At some point between June 17 – 18, and June 23, 2011, KJA’s text messages to Mr. Burns were deleted from KJA’s phone. There are no means of replicating them. Mr. Burns also deleted them from his phone. KJA has some independent recollection of whatshe texted to Mr. Burns. She was not specifically asked if her recollection would be improved if she referred to Mr. Burns’ texts torefresh her memory. Unacceptable Negligence-Section 7 Charter Violation [112] I am unaware of any reported decision, in which the police have been found unacceptably negligent in similar circumstances.

Nocourt has gone as far as to say that the circumstances in the case at Bar meet the threshold for effectively imposing an obligation ofdisclosure or production on the Crown for evidence that “should have been seized”, breach of which is a breach of s. 7 of the Charter. Most recently our Court of Appeal dealt with an allegation of “unacceptable negligence” and loss of evidence which had been in the

possession of the police (taser video) in R. v. Boliver, 2014 NSCA 99, per Bryson, JA. at paras. 32 – 34. Some courts have concludedthat a failure to seize or secure evidence may amount to negligence which could underpin a claim of prejudice to an accused’s right tomake full answer and defence: R. v. Abukar, 2009 ABPC 136; R. v. Shewchuk, 2014 ABPC 14; R. v. Gill, 2014 SKQB 176. [113] I conclude that the law has not gone that far, nor should it. There was no duty on the Constable to view the text messages andseize the phone.

Not having viewed the texts or seized the phone, the phone and necessarily the text messages on that phone, were nottransformed into “fruits of the investigation”, and therefore no latent obligation of disclosure or production crystallized until June 28,2011 when the phone was seized. [114] Even presuming that, on June 17 – 18, 2011 the phone was then effectively in the hands of the police, thus crystallizing a laterobligation of disclosure or production, in the circumstances I do not find that Constable Parasram’s actions or inactions cumulativelyamount to negligence, much less so, to unacceptable negligence. [115] I conclude that it was reasonable for the Constable to make a notation of the evidence as he did, as there was no material riskidentified in the evidence

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