Phillip Joseph Durocher Appellant v. Her Majesty the Queen, 2019 SKCA 97

Restriction onPublication An order has been made in accordance with s. 486.4 of the Criminal Code directing that anyinformation identifying the complainant shall not be published. Court of Appeal for Saskatchewan Docket: CACR3098 Citation: R vDurocher, 2019SKCA 97Date: 2019-09-24Between:Phillip Joseph DurocherAppellantAndHer Majesty the QueenRespondentBefore: Caldwell, Schwann and Barrington-Foote JJ.A.Disposition: Appeal dismissedWritten reasons by: The Honourable Madam Justice SchwannIn concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice Barrington-FooteOn Appeal From: CR 17 of 2015, Prince AlbertAppeal Heard: April 2, 2019Counsel: Gordon Kirkby for the Appellant Erin Bartsch for the Respondent Schwann J.A. I. Introduction [1] In a judge alone trial, Phillip Durocher was found guilty by a Court of Queen’s Bench judge of sexual assault contrary tos. 271 of the Criminal Code and sexual interference with a person under the age of 16 contrary to s. 151 of the Criminal Code. [2] The trial judge sentenced Mr. Durocher to a one-year term of imprisonment for the s. 151 offence, followed by one year ofprobation after his release from prison.

A judicial stay of proceedings was entered with respect to the sexual assault charge based on theprinciples of R v Kienapple, (SCC), [1975] 1 SCR 729. [3] Mr. Durocher appeals from conviction, arguing the following errors: (

a) the trial judge found him guilty of the s. 151 offence even though he found as fact that the complainant was 16 years of age; (

b) the trial judge admitted social media evidence as a full Crown exhibit without conducting a voir dire of his own motion todetermine its admissibility; (

c) the trial judge failed to consider critical pieces of evidence in determining issues of guilt; and (

d) the trial judge refused to consider the complainant’s behaviour and simply dismissed Mr. Durocher’s arguments as “sexualassault myths”. [4] For the reasons expressed below, I would dismiss the appeal. II. Background [5] At some point in the late winter or the early spring of 2013, the complainant, L.A., moved in with her aunt, C.W., and heraunt’s spouse, Mr. Durocher. C.W.’s two sons and her nephew also resided in the home. L.A. slept in a basement bedroom across from aroom occupied by the nephew. [6] L.A. testified that in the early summer of 2013, a couple of weeks before her 16th birthday, Mr.

Durocher came to herbedroom late one night. She awoke to find him kneeling on the floor beside her bed touching her vaginal area underneath her underwear.When L.A. moved her leg, Mr. Durocher removed his hand and left the bedroom. L.A. testified that she felt scared. [7] The next night, L.A. awoke once again to find Mr. Durocher in her bedroom, but this time she found him lying on top of her.L.A. testified that Mr. Durocher was wearing shorts and had an erection. According to L.A., he tried to kiss her, but she pretended to be

asleep and moved her face away from his to avoid being kissed. After a few moments, Mr. Durocher got up and walked around theroom, but he returned to L.A. and began to “feel her up”. When L.A. rolled over on the bed, Mr. Durocher left. [8] L.A. testified that Mr. Durocher had sent Facebook messages to her several days before the alleged assaults took place,saying “gross things”. On several such occasions, she responded by telling him to “shut up” and once used the abbreviation “STFU”(shut the fuck up). L.A. says she continued to receive Facebook messages from Mr.

Durocher for several weeks after the alleged assaultstook place. [9] At some point later that summer, L.A. absented herself from C.W.’s residence for a prolonged period of time. When L.A.returned on the evening of August 28, 2013, a dispute arose between L.A. and C.W. that culminated with C.W. insisting she leave herhome. The following day, L.A. sent a text message to Mr. Durocher referring to him as a “sicko” and stated that she “can’t believe [he]would do that”. On receipt of that message, Mr. Durocher immediately handed his cellphone to C.W. It was at that point L.A. accusedMr.

Durocher of inappropriate touching. She then reported the alleged assaults to the police. III. the trial decision [10] The trial judge began his decision by addressing various discrepancies in L.A.’s testimony. Citing R v W.(R.), (SCC), [1992] 2 SCR 122, he instructed himself to discount any notion that “because of her troubled past, she is necessarily less worthyof belief, or her testimony is necessarily unreliable”. Although the trial judge found L.A’s testimony somewhat vague on the extraneousdetails – including the dates L.A. said she had received the social media messages from Mr.

Durocher – he found these facts did not havean appreciable impact on the reliability of her testimony. [11] The trial judge then commented on the events of August 28, 2013, when L.A. was kicked out of C.W.’s house. He said it wasan obviously emotional situation.

Although defence counsel had suggested L.A. was motivated by revenge when she reported the sexualassault to the police the following day, the trial judge did not find the evidence about the August 28 incident “to be of much help in thetruth-seeking function of the Court, as it relates to the charge” and that “none of it imports on my determination whether the Crown hasproven the guilt of Mr. Durocher beyond a reasonable doubt”. [12] The trial judge next addressed the use of and access to the mobile devices (smart phones) in C.W.’s house.

He found as a factthat L.A. had use of one of the smart phones, was connected to Facebook, and that it didn’t appear as though anyone else used her smartphone. The trial judge went on to note that both Mr. Durocher and C.W. had mobile devices of their own, which, according to C.W.’sevidence, were always lying around and could be accessed by anyone in the house. [13] The trial judge then turned to the evidence concerning the Facebook messages that L.A. claimed she had received fromMr. Durocher.

The trial judge made the following finding of fact with regard to that evidence: “The messages are clearly inappropriate tobe sent by Mr. Durocher to a 16-year-old niece living in his house. They are primarily sexual in nature. [L.A.] believed that they weresent by Mr. Durocher to her. She was visibly upset and disturbed on the stand when the messages were once again shown to her”.Although the trial judge concluded Mr.

Durocher was the sender of the Facebook messages, as regards the content of those messages, hesaid “they don’t add to the allegation of the specific sexual assault”. [14] In the end, the trial judge found the trial came down to the credibility of L.A. He found her testimony about the two incidents“clear, not confused or changing”, and that she was “fully engaged” when she described the assaults but less so when she talked aboutperipheral matters. The trial judge commented on the manner in which L.A. testified. Although he found L.A. combative at times, hesaid her testimony was compelling.

The trial judge took note of the emotions L.A. conveyed on the stand when she described theassaults. Her tone impressed him. The trial judge said that just because L.A. was a troubled person, it did not mean she could not besexually assaulted. Finally, the trial judge commented on the fact that L.A. did not embellish her story when presented with theopportunity to do so.

While the trial judge cautioned himself not to place too much reliance on L.A.’s demeanor, based on the advantagehe had of seeing her on the witness stand, he was satisfied that it lent support to the veracity of her testimony about the assaults she saidhad occurred. [15] In the end, the trial judge was satisfied beyond a reasonable doubt that Mr. Durocher had sexually assaulted L.A. on twosuccessive nights in June of 2013, and he convicted him on both counts. IV. ANALAYSIS A. Did the trial judge find as fact that L.A. was 16 years of age at the time ofthe offence and thereby err in law in finding Mr.

Durocher guilty of the s. 151offence? [16] Mr. Durocher was convicted of sexual interference with a person under the age of 16 years, contrary to s. 151 of the CriminalCode. He argues the verdict is unreasonable and cannot be supported by the evidence because the trial judge found as fact that L.A. was16 years of age when this offence was committed. The following passage from the trial judge’s decision is said to support his argument:“Although she is a young adult now, she was 16 when the alleged incidents took place”. Mr.

Durocher also points to the portions ofL.A.’s cross-examination where she referred to herself as a 16-year-old at the time of the alleged assaults, which, he submits, lendssupport to the notion that the trial judge had made a finding of fact regarding L.A.’s age. [17] As I understand his argument, Mr.

Durocher contends that either the verdict is unreasonable and cannot stand in light of aclear finding of fact that L.A. was 16 years of age at the time of the offence (and thus the Crown had not established an essential elementof the offence) or that the trial judge failed to give proper effect to L.A.’s evidence about her age. In response, the Crown argues the

verdict is not unreasonable because the asserted misapprehension of evidence is simply part of the trial judge’s narrative as set out in his reasons for judgment. [ 18 ] To properly assess Mr. Durocher’s argument, the trial judge’s statement has to be viewed in context. Mr. Durocher’s trial strategy was to undermine L.A.’s credibility. One of the ways he sought to do so was by pointing to her troubled childhood where she had been shunted from family homes to group homes and was an admitted “runner”.

L.A.’s youth and adult criminal record were also drawn to the attention of the trial judge through her cross-examination. The trial judge addressed these issues directly in his oral reasons. He began by rejecting the notion that, because of her troubled past, L.A. was less worthy of belief or that her testimony was unreliable. The trial judge then instructed himself not to evaluate L.A.’s evidence on the basis of her age at the time of trial (in 2017), but to assess her testimony in light of her age at the time the offences were said to have taken place (in 2013).

It was within the context of this instruction that he said, “although she is a young adult now, she was 16 when the alleged incidents took place…”. [ 19 ] In my view, the impugned comment was not a finding of fact but part of the trial judge’s narrative, self-instruction and context for what he saw as the real issue at trial: L.A.’s credibility. My conclusion on this point is reinforced by the fact that L.A.’s age at the time of the s. 151 offence was never put in issue at trial. L.A. was never cross-examined on this point nor did counsel for Mr.

Durocher suggest the Crown had failed to prove this element of the offence beyond a reasonable doubt. Instead, Mr. Durocher took the position that the assaults never occurred. My

interpretation of the trial judge’s comments is further reinforced by two findings of fact the trial judge did make, namely her birthday – “She was born on July 15, 1997” – and when the offences occurred – “two successive nights, [i]n June 2013”, early summer. [ 20 ] Although the trial judge may have over-generalized L.A.’s age in saying what he did, I am satisfied his statement does not represent a finding that L.A. was 16 years of age at the time of the alleged assaults as now argued on appeal.

Read as a whole, this part of the trial judge’s reasons is best seen as part of the overall context or narrative to the decision and is not part of the reasoning process in relation to the age element of the offence ( R v Lohrer , 2004 SCC 80 at para 2 , 3 SCR 732). [ 21 ] Neither, in my view, did the trial judge misapprehend L.A.’s evidence about when she said the assaults took place. The trial judge had L.A.’s clear, unchallenged evidence: she said the assaults took place before her 16th birthday. On appeal, Mr.

Durocher argues the trial judge misapprehended L.A.’s evidence by highlighting what she subsequently said under cross-examination. When asked about her reaction to the alleged assaults and why she didn’t scream, L.A. responded as follows: “I -- like, how do you expect me … like try to fight back?

If I’m like a 16-year-old -- a scared 16-year-old.” L.A. made a similar remark about staying in a house with someone who sends sexually explicit messages. [ 22 ] In my view, these somewhat reactive and expressive statements made by L.A. under cross-examination cannot rationally be construed as an admission that she was 16 years of age when the assaults took place. L.A.’s responses to the question put to her under cross-examination (why she didn’t scream) cannot be viewed in isolation and must be considered in light of the whole of her testimony and the purpose of this line of questioning.

Approached from that perspective, her statement – that she was 16 – like that of the trial judge’s, is readily explained as an approximation. It can be inferred from the trial judge’s reasons that he did not see L.A.’s cross- examination in the manner now suggested by Mr. Durocher on appeal, likely because the purpose of this line of questioning was intended to show that L.A.’s testimony was not believable, not to show that she had lied about her age at the time of the assaults.

In any event, it was for the trial judge to assess if L.A. had contradicted herself under cross-examination and, if so, what to make of her testimony. [ 23 ] In

summary, I would not give effect to this ground of appeal. Read as a whole, the trial judge was under no misapprehension about L.A.’s age at the time of the sexual interference offence and did not make a finding of fact to the contrary. There is no indication the trial judge erred in his assessment of the evidence or that his impugned statement was anything more than an over-generalization set out in a contextual narrative. Furthermore, I am satisfied the trial judge understood that L.A. was under 16 years of age at the time of the alleged assault and that he accepted her evidence in that regard. B.

Did the trial judge err in failing to hold a voir dire of his own motion to determine the admissibility of the Facebook messages? 1. Defence counsel’s objections and how the trial judge handled this issue [ 24 ] In order to assess Mr. Durocher’s arguments concerning the Facebook messages, it is necessary to understand both how the Facebook evidence was adduced at trial, how the trial judge dealt with defence counsel’s objection to its introduction and the parties’ closing submissions. [ 25 ] L.A. was the Crown’s only witness.

Her evidence consisted of a prior video-recorded statement she had given to the police shortly after the alleged assaults took place and her viva voce testimony at trial. Among other things, L.A. told the police about the sexually explicit Facebook messages she had received on her smart phone both before and after the alleged assaults took place and that she believed the messages were from Mr. Durocher. Prior to the police statement being played at trial, defence counsel indicated to the trial judge that he would object to “pieces of this evidence” because it was “character evidence”.

The trial judge took note of defence counsel’s comment and told him he could argue it later. [ 26 ] After the video-recorded statement was played in court, the Crown sought to elicit further testimony from L.A. about the Facebook messages. Defence counsel immediately alerted the trial judge to the possibility that an objection to this line of questioning was forthcoming:

THE COURT: Are you objecting to something, Mr. Kirkby [defence counsel]? MR. KIRKBY: Yes, My Lord, I will be objecting to this evidence on the basis that -- well, perhaps we could -- (Emphasis added) [ 27 ] When the trial judge pressed defence counsel to explain the nature of his objection, counsel appeared content to allow the Crown to continue with its examination-in-chief of L.A: MR KIRBY: Right. So -- well, I’ll let her continue , and then I can -- once it’s explained, I can -- I’ll just let you know, I’m going to be objecting to it, My Lord. THE COURT: Okay.

When you object, please say so, because I’m not watching you all the time. (Emphasis added) [ 28 ] Following this interjection, Crown counsel led L.A. through her evidence about the Facebook messages. L.A. testified that she had printed off screen shots from some of the Facebook messages she claimed to have received from Mr. Durocher. Crown counsel questioned her about the significance of the June 27 date at the top of one of the printed pages containing the screen shots.

In response, L.A. said she had received some of the messages before the sexual assaults took place. [ 29 ] Crown counsel then asked L.A. how she knew who had sent the messages to her. She responded, “because it says his name” and because she was able to access the messages on her smart phone. The Crown pressed L.A. further on how she knew the social media messages had come from Mr. Durocher. L.A. did not directly answer this question.

Instead, she deflected the suggestion (that had apparently been made at the preliminary inquiry) that the messages were self-generated, stating as follows: Because he -- that’s obviously his Facebook and I also do know that -- that last time in -- when we were in court, they tried to say that it could have been me sending the messages. But then, I also have proof that there couldn’t have been -- it couldn’t have been me, because some of those messages were being sent to me when I was in Loon Lake.

And there’s -- I don’t know, I’ve -- I know that it couldn’t have been me, because I was reported missing, and there’s already -- like, the report of me being missing couldn’t -- like, I couldn’t have been at home if they were -- if I was reported missing. [ 30 ] Crown counsel then led L.A. through further evidence about the content of the Facebook messages. L.A.’s viva voce testimony was consistent with what she had told the police in her police interview. She went on to explain how she had bluntly responded to some of the sexually explicit messages purportedly sent from Mr.

Durocher’s Facebook account and how he had then replied to her. In the police interview that was adopted by L.A. at trial, she identified several acronyms used by the parties in the messages that had gone back and forth between them. [ 31 ] At the conclusion of his examination-in-chief, Crown counsel sought to have the printouts from the screenshots marked as a full Crown exhibit. The Crown’s request prompted defence counsel to say, “Well, I will be objecting to it at this stage” (emphasis added).

Rather than hear from defence counsel on his objection, the trial judge simply marked the printouts as exhibit P-2 for identification. The trial judge’s decision to treat this evidence in this fashion elicited no further comment from defence counsel. [ 32 ] Mr. Durocher’s counsel then cross-examined L.A. on a wide range of matters, including exhibit P-2. Although L.A. was asked about the dates at the top of each of the screen shots, she was never directly challenged on her evidence that Mr. Durocher was the author of the Facebook messages.

Instead, defence counsel chose to focus on when she had received the messages and if other people in the house had access to Mr. Durocher’s mobile device. [ 33 ] At the conclusion of defence counsel’s cross-examination, the Crown closed its case. When the trial resumed the next day, following a ruling on an unrelated Charter application, the trial judge reminded Crown counsel of “unfinished business” with respect to exhibit P-2. Crown counsel responded by asking to have it made a full exhibit.

The trial judge then turned to defence counsel for his position on the matter and the following exchange took place between them: THE COURT: What are your comments, Mr. Kirkby? MR. KIRKBY: What I would suggest, My Lord, is we will be calling evidence. There will be some evidence given touching on that.

And -- THE COURT: And -- and -- but at the same time, when determining whether or not it’s a -- an exhibit as part of the Crown’s case, it seems to me -- and I appreciate from the cross-examination that there is going to be an issue about it, but that doesn’t impact on whether it becomes a Crown exhibit or not, a full exhibit. MR. KIRKBY: Okay. THE COURT: It may impact on whether it has any value -- MR. KIRKBY: It’s weight. Right, okay.

THE COURT: -- right? So the -- MR. SYRNICK [Crown counsel]: Yeah. That -- that would be our position, it should be a full exhibit. Weight and whatever else is -- THE COURT: Yeah, and I -- I think you’re correct, Mr. Syrnick, so I think it was P-2 for identification is now a full exhibit. Sorry,Mr. Kirkby, you’re calling evidence or not? (Emphasis added) As reflected by this exchange, defence counsel not only failed to object to the admissibility of exhibit P-2, but he informed the trial judgethat defence evidence touching on exhibit P-2 would be called in response.

Based on this exchange, the trial judge understood therewould be “an issue” about exhibit P-2, but he went on to suggest that it did not go to the admissibility of this exhibit but to its weight.Defence agreed with that assessment. The trial judge then marked P-2 as a full exhibit. [34] The issues raised on appeal are also informed by the submissions of the parties at the close of trial. In relation to the Facebookmessages, defence counsel raised two lines of argument. First, defence counsel invited the trial judge to find reasonable doubt as towhether Mr.

Durocher was the author of the Facebook messages that were allegedly sent to L.A. because C.W. had testified thateveryone in her house had access to his mobile device and that it was not password protected. In the alternative, even if the trial judgefound Mr. Durocher was the author, defence counsel submitted the messages did not contain his admission to the alleged assaults andwere nothing more than inappropriate comments on Mr.

Durocher’s part. [35] At no point in his argument – or, for that matter, in the course of the trial – did defence counsel ever argue the Facebookmessages were inadmissible or that a voir dire should be held to determine their admissibility. [36] In his closing submissions, after touching on the Facebook messages and L.A.’s credibility, Crown counsel said, “My Lord, Ido suggest that this is not a simple he said, she said, because he didn’t say.

She did say, and I suggest there’s a corroborative evidence”.Beyond this statement, Crown counsel did not identify the purpose or use to be made of exhibit P-2 nor did counsel specifically assert itwas an admission by the accused and therefore adduced for the truth of its contents. [37] The trial judge delivered an oral judgment the following day. As mentioned above, he found as fact that the Facebookmessages had been sent by Mr. Durocher. While the trial judge did not explain precisely how he arrived at this conclusion, it can betaken from his reasons that he was influenced by the content of the messages.

The trial judge found support for his conclusion in L.A.’stestimony because, as he said, she was upset and disturbed on the stand when the messages were shown to her. [38] Turning to the utility of exhibit P-2 in relation to the Crown’s case, the trial judge went on to examine this issue from thecontext of defence counsel’s alternative argument. Having reviewed the content of the Facebook messages, the trial judge concluded, “Ibelieve that Mr. Durocher did send messages, but they don’t add to the allegation of the specific assault”.

While this statement was notarticulated as clearly as it could have been, I interpret the trial judge as saying the Facebook messages did not contain an admission byMr. Durocher to the alleged sexual assaults. 2. Arguments on appeal [39] At trial, Mr. Durocher took the position that he was not the author of the Facebook messages received by L.A. On appeal, heargues that, in spite of his failure to press the point with the trial judge, it was incumbent on the trial judge to hold a voir dire of his ownmotion to determine the admissibility of the Facebook messages.

More specifically, he argues authorship is a question of admissibility,not weight and, as such, a voir dire was warranted. [40] In my view, and as explained below, Mr. Durocher’s argument invites consideration of three somewhat related issues inrelation to the Facebook messages – authorship, hearsay and/or admissions by an accused and authenticity. I will deal with each in turn. 3. Authorship of the Facebook messages [41] The impugned evidence in this appeal concerns an out-of-court statement purportedly made by Mr. Durocher who, at trial,took issue with whether he was the author of the Facebook messages. Mr.

Durocher now argues this evidence should not have beenadmitted without a ruling to that effect following a voir dire. [42] Mr. Durocher submits that, because they are out-of-court statements alleged to have been made by him, the Facebookmessages could only be admitted if, on a voir dire, the trial judge found on a balance of probabilities that the statements were made byhim. In R v Evans, (SCC), [1993] 3 SCR 653 [Evans], the issue was the admissibility of statements attributed to theaccused.

At trial, the Crown led testimony from a husband and wife that the man who purchased their car had told them he worked inchain-link fencing and that he had a big dog that was going to have pups. The car, which had been purchased from the husband and wife,was subsequently used as the getaway car in a robbery. Independent evidence revealed that Mr.

Evans had a large, pregnant dog and hadbeen employed as a chain-link fencer. [43] On appeal to the Supreme Court, the issue was narrowed to whether an out-of-court statement, allegedly made by theaccused, could only be admitted if, on a voir dire, the trial judge found the statements had been made by the accused. The SupremeCourt first addressed whether the statements attributed to the accused were hearsay. Justice Sopinka noted that “[a]n out-of-courtstatement which is admitted for the truth of its contents is hearsay …” (at 661).

Which is to say, the statements attributed to the accusedcould only prove that the purchaser of the car owned a dog or worked as a chain-link fencer, if the statements were assumed to be true.The Supreme Court therefore reasoned the statements had probative value as non-hearsay on the issue of identity. The fact that thestatements were made “narrows the identity of the declarant to the group of individuals who are in a position to make similarrepresentations” (at 662).

Justice Sopinka concluded that a statement can have probative value “without assuming the truth of thestatement because the mere fact that it was made tells us something relevant about the declarant that connects him to the accused” (at

663). Since the only issue in admitting this kind of evidence is whether the statement was made, the statement was not hearsay. [44] By challenging the authorship of the Facebook messages, Mr. Durocher put whether he made the statements in issue. Thus,Mr. Durocher’s objection to the admission of the Facebook messages relates not to the truth of their contents, but to whether he was theauthor of them. Since the truth of Mr.

Durocher’s statements is not in issue, “deprivation of the right to cross-examine the declarant, onwhich rejection of hearsay is premised, is of no consequence” (Evans at 664). [45] Evans is also important for the procedure to be used to determine the admissibility of statements attributed to an accusedwhere authorship is put in issue.

Evans adopted a two-staged approach with respect to this issue and underscored the importance of notconflating the standard for admission with the standard for the ultimate determination by the trier of fact (at 668): In light of this approach regarding the authenticity of admissions, if there is some evidence to permit the issue to be submitted to the trierof fact, the matter must be considered in two stages.

First, a preliminary determination must be made as to whether, on the basis ofevidence admissible against the accused, the Crown has established on a balance of probabilities that the statement is that of the accused.If this threshold is met, the trier of fact should then consider the contents of the statement along with other evidence to determine theissue of innocence or guilt.

In the second stage the contents are evidence of the truth of the assertions contained therein. [46] As the Court made clear in Evans, a voir dire is not required to address threshold admissibility when authorship is in issue.Considering that the authorship of the Facebook messages was at issue, the trial judge was only required to consider whether theevidence proved on a balance of probabilities that Mr.

Durocher wrote the Facebook messages. [47] R v J.V., 2015 ONCJ 837, held that, for the purposes of the Evans test, authorship can be inferred circumstantially through“such things as the source of the information, access to the relevant email or social media address, the disclosure of details known to thepurported author and the nature of the exchanges between the parties …” (at para 3). [48] With those basic principles in mind, I return to the matter at hand.

For purposes of threshold admissibility, the Crown had toestablish there was some evidence capable of supporting a finding – on a balance of probabilities – that the Facebook statements weremade by Mr. Durocher. L.A. provided relevant and uncontradicted testimony about the Facebook messages and why she believedMr. Durocher was the sender. She said Mr. Durocher’s name was at the top of each message and that she was his Facebook friend.

Thecontents of the messages that were read into evidence at trial as part of her viva voce testimony was sexually explicit and expressed asexual interest in L.A., both before and after the incidents were alleged to have occurred. In some instances, L.A. responded to themessage by telling the sender to shut up, or, as she put it, “STFU”. Her replies were often met with a further message from the sender. [49] There was no suggestion at trial of tampering or that the sender used an alias.

Although the prospect of tampering wasdiscussed in the context of threshold authentication, Watt J.A., in R v C.B., 2019 ONCA 380, 146 OR (3d) 1 [C.B.], was of the view thatan inference could be drawn about authorship in the absence of any evidence that gives an air of reality to such a claim: [72] As a matter of principle, it seems reasonable to infer that the sender has authored a message sent from his or her phone number. Thisinference is available and should be drawn in the absence of evidence that gives an air of reality to a claim that this may not be so. Rankspeculation is not sufficient: R. v.

Ambrose, 2015 ONCJ 813, at para. 52. [50] In my view, the trial judge properly applied the Evans test to determine threshold admissibility. Examining the circumstantialevidence as a whole, it was open to him to draw an inference that Mr. Durocher was the author of the Facebook messages. L.A. providedviva voce testimony and a statement to the police that Mr. Durocher was the person who had sent the Facebook messages to her. Sheexplained the basis for her belief and briefly discussed the content of each message.

L.A.’s evidence on this point went in unchallenged. [51] My conclusion with regard to threshold admissibility is not inconsistent with the approach taken by defence counsel at trial.At no time did defence counsel press for an admissibility voir dire, or suggest the evidence was not relevant or material to the charges orargue that the prejudicial effect of the Facebook messages exceeded their probative value.

Based on defence counsel’s cross-examinationof L.A., the trial judge understood there was an issue about who authored the messages; however, when the trial judge ruled exhibit P-2was a full Crown exhibit – and therefore admissible – he can be taken to have been satisfied the Crown had met the test for thresholdadmissibility.

According to the record, defence counsel seemingly agreed with the trial judge’s thinking on the matter. [52] In exercising his gatekeeper function at the threshold admissibility stage, the trial judge only needed to be satisfied on abalance of probabilities that the statements were made by Mr. Durocher. He was entitled to rely on circumstantial evidence to do so and,importantly, he was not required to hold a voir dire to make a threshold determination at this stage. [53] This argument therefore has no merit. 4. The hearsay issue [54] The issue of hearsay is complicated somewhat by how the trial played out.

At no point in the course of the trial did Crown ordefence counsel alert the trial judge to the possibility that the Facebook messages might constitute hearsay evidence or that a voir direwas required because of that possibility. Although Mr. Durocher does not expressly raise hearsay as a concern on appeal, he frames theFacebook evidence as giving rise to what he refers to as a reliability concern that could have resulted in an unfair verdict because theevidence was admitted without a voir dire. Notably, Mr.

Durocher relies on two hearsay decisions in support of his position: R v Starr,2000 SCC 40, [2000] 2 SCR 144 [Starr], and R v Hodgson, (SCC), [1998] 2 SCR 449 [Hodgson]. Based on thisargument, I interpret Mr. Durocher to argue that a voir dire was necessary because the Facebook evidence was hearsay evidence andtherefore presumptively inadmissible. [55] The Crown, on the other hand, argues the Facebook messages were admissible because they were relevant to the issues at trialand not barred by any exclusionary rule.

This is so, the Crown’s argues, because an admission by an accused to someone who is not aperson in authority satisfies one of the traditional exceptions to the hearsay rule. Relying on R v S.G.T., 2010 SCC 20 at para 20, [2010]

1 SCR 688 [ S.G.T. ], and R v McLachlan , 2014 SKCA 68 , 438 Sask R 193 [ McLachlan ], the Crown goes on to argue that where an out- of-court admission is made by an accused to a person not in authority, a voir dire is unnecessary, and the evidence is presumptively admissible. By arguing the Facebook messages were admissible as an exception to the hearsay rule, the Crown has approached this issue on appeal through that analytical framework. a.

The governing legal principles [ 56 ] Succinctly put, hearsay is an out-of-court statement made by a non-testifying declarant “tendered for the truth of its contents” ( R v Bradshaw , 2017 SCC 35 at para 1 , [2017] 1 SCR 865 [ Bradshaw ]): see also R v Khelawon , 2006 SCC 57 at paras 36 and 56 , [2006] 2 SCR 787 [ Khelawon ], and R v Baldree , 2013 SCC 35 at para 30 , [2013] 2 SCR 520. [ 57 ] While all relevant evidence is generally admissible, hearsay evidence is presumptively inadmissible unless it falls within one of the traditional exceptions to the hearsay rule or is shown to satisfy what is known as the principled approach to admissibility based on the “twin criteria of necessity and reliability” ( Khelawon at para 9 ): see also Bradshaw at paras 22 and 23 , Baldree at para 34, and R v Mapara , 2005 SCC 23 at para 15 , [2005] 1 SCR 358.

Even where the criteria of necessity and reliability are met, the trial judge retains the residual discretion to exclude an out-of-court statement where the “probative value is outweighed by its prejudicial effect” ( Khelawon at para 49 ). [ 58 ] Common law exceptions to the hearsay rule are grounded in the notion that this type of evidence, falling within this scope, poses minimal danger and therefore to exclude it would “impede the truth-seeking function” of the court ( Khelawon at para 2 ).

The “onus rests with the proponent of the hearsay evidence to establish, on a balance of probabilities, that its admission is warranted” ( R v Nataucappo , 2015 SKCA 28 at para 32 , 322 CCC (3d) 69): see also Baldree at para 116 and Khelawon at para 47 .

And, since “[n]o evidence is hearsay on its face” ( Baldree at para 36 ), it is incumbent on the proponent of the evidence to articulate the intended use or purpose for which the out-of-court statement is tendered to enable the trial judge to make an admissibility ruling: “The answer to this question will necessarily inform the relevance of the evidence, the admissibility analysis to be conducted, and the legal conclusion reached” ( R v Bridgeman , 2017 ONCA 940 at para 32 , 357 CCC (3d) 213; see also R v Short , 2018 ONCA 1 at para 61 , 358 CCC (3d) 337). [ 59 ] Mr.

Durocher argues the trial judge should have asserted his gatekeeper role with respect to the Facebook messages because there were, as he puts it, reliability concerns with this evidence. In making this argument, Mr. Durocher circles back to the authorship issue by reference to the reliability criterion mentioned in Starr and Hodgson . Even though he failed to press for a voir dire or challenge the admissibility of this evidence at trial, on appeal Mr.

Durocher argues the trial judge erred by failing to hold a voir dire of his own motion to determine the admissibility of this evidence. [ 60 ] I begin with the Supreme Court’s decision in S.G.T. At trial, the complainant’s mother testified about an email exchange she had with the accused, wherein the accused responded with an apology. When the Crown sought to introduce the email as an exhibit at trial, the trial judge specifically asked defence counsel if he objected to its admission. Defence counsel did not object. [ 61 ] The accused was convicted and appealed his conviction to this Court.

His appeal was allowed on the basis that, even though defence counsel had not opposed the admissibility of the email evidence, the trial judge had erred in failing to conduct a voir dire of his own motion to determine the admissibility of that evidence ( R v S.G.T. , 2008 SKCA 119 , [2008] 11 WWR 1 [ S.G.T.-CA ]).

According to this Court’s ruling in S.G.T.-CA , three exclusionary rules or limiting principles might have been invoked in the circumstances of that case to exclude the email from evidence: the confessions rule (on the theory the complainant’s mother was a person in authority), the trial judge’s inherent jurisdiction to exclude prejudicial evidence that outweighs its probative value and the derived confessions rule. (The latter argument was premised on a confession the accused had made to the police that had been ruled inadmissible by the trial judge following a voir dire for that limited purpose). [ 62 ] The Crown appealed the decision in S.G.T.-CA to the Supreme Court.

While the Supreme Court was split on the derivative confession ground of appeal, the majority concluded the trial judge did not err by failing to hold a voir dire of his own motion. In considering whether a voir dire was necessary, Charron J., speaking for the majority, began her analysis by drawing an important distinction between an admission and a confession for admissibility purposes: [20] The distinction between an admission and a confession is apposite here.

Under the rules of evidence, statements made by an accused are admissions by an opposing party and, as such, fall into an exception to the hearsay rule. They are admissible for the truth of their contents. When statements are made by an accused to ordinary persons, such as friends or family members, they are presumptively admissible without the necessity of a voir dire . It is only where the accused makes a statement to a “person in authority”, that the Crown bears the onus of proving the voluntariness of the statement as a prerequisite to its admission.

This, of course, is the confessions rule. (Emphasis added) [ 63 ] Although there is consensus amongst academics that an admission constitutes admissible evidence, they differ on its rationale for admission: some contend it is an exception to the hearsay rule, yet others view it as part and parcel of the adversary system because the declarant is able to testify (Sidney Lederman, Michelle Fuerst and John Sopinka, The Law of Evidence in Canada , 5th ed (Toronto: LexisNexis, 2018) at 388–389 [ Law of Evidence ]). This debate finds root in the Supreme Court decision of Evans (at 664):

The rationale for admitting admissions has a different basis than other exceptions to the hearsay rule. Indeed, it is open to disputewhether the evidence is hearsay at all. The practical effect of this doctrinal distinction is that in lieu of seeking independentcircumstantial guarantees of trustworthiness, it is sufficient that the evidence is tendered against a party. Its admissibility rests on thetheory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie tocomplain of the unreliability of his or her own statements.

As stated by Morgan, “A party can hardly object that he had no opportunity tocross-examine himself or that he is unworthy of credence save when speaking under sanction of oath” (Morgan, “Basic Problems ofEvidence” (1963), pp. 265–66, quoted in McCormick on Evidence, [Charles Tilford McCormick, McCormick on Evidence, 4th ed, vol 2(St. Paul, Minn: West Publishing Co., 1992), John William Strong (ed)], at p. 140).

The rule is the same for both criminal and civil casessubject to the special rules governing confessions which apply in criminal cases. [64] The other point of view is that an out-of-court admission by an accused is an exception to the hearsay rule: “Admissions arepresumed truthful because they have been made by [a defendant] and are tendered by the [the Crown] to advance its case.

They arereceived as an exception to the hearsay rule as evidence of the truth of their contents” (emphasis in original, David Watt, “Admissions” inWatt’s Manual of Criminal Evidence (Toronto: Thomson Reuters, 2019) s 27.10) [Criminal Evidence]). [65] I find it unnecessary to resolve the doctrinal basis for the admissibility of an out-of-court statement by an accused person inorder to address Mr. Durocher’s argument.

The following is noted in R v D.D., 2015 ONSC 3667: “The presumptive admissibility of anaccused’s statements to people not in authority rests on an understanding that these statements are not hearsay or, if they are, theyconstitute a clear exception to the hearsay rule” (at para 19). [66] This Court applied S.G.T. in McLachlan. In McLachlan, the appellant argued the trial judge erred by admitting a statement shehad made to a friend disclosing a sexual encounter she had with a young person.

The appellant argued the trial judge was obliged to ruleon the admissibility of the statement because it constituted hearsay and was therefore presumptively inadmissible and that the trial judgeerred by failing to give her an opportunity to contest the out-of-court statement on a voir dire. [67] Citing S.G.T. for the contrary position, this Court in McLachlan held that it was not the law that an admission made to aperson not in authority is presumptively inadmissible: [14] It is not a proposition of law that an admission to a person not in authority is presumptively inadmissible.

Indeed, quite the contrarycan be stated, as the Supreme Court of Canada held in R v S.G.T., 2010 SCC, 2010 SCC 20 , [2010] 1 S.C.R. 688: [20] Under the rules of evidence, statements made by an accused are admissions by an opposing party and, as such, fall into an exceptionto the hearsay rule. They are admissible for the truth of their contents. When statements are made by an accused to ordinary persons,such as friends or family members, they are presumptively admissible without the necessity of a voir dire [emphasis added by JacksonJ.A. in McLachlan]. b.

Application [68] Based on the principles of law expressed above, the statements made by Mr. Durocher in the Facebook messages are eithernot hearsay (because they were not adduced for the truth of their contents) or, if they are, they fell under a recognized exception to thehearsay rule and were presumptively admissible for the truth of their contents. [69] Quite apart from the legal principles at play, defence counsel’s position at trial is a relevant consideration. To begin with,defence counsel never identified hearsay as the basis for his concern nor did he even suggest a voir dire was necessary.

At best, he put atentative objection on the record by stating he “may object” after the Crown introduced the topic of the Facebook messages in its directexamination of L.A. Defence counsel not only failed to object to L.A.’s viva voce testimony about the Facebook messages or, for thatmatter, take issue with her testimony about the content of those messages, but he agreed she should continue with her testimony. Undercross-examination, defence counsel did not challenge L.A.’s testimony that it was Mr. Durocher who had sent the Facebook messages.

Ifanything, L.A.’s evidence on this point was amplified by questions that focused on when she had received the messages and whetherothers in the house had access to Mr. Durocher’s mobile device. [70] Defence counsel’s lack of objection or, for that matter, silence about any hearsay concern, seems to have been in furtheranceof a trial strategy designed to undermine the credibility of L.A. and to create reasonable doubt as to whether Mr. Durocher was the authorof the Facebook messages.

This strategy was reflected in defence counsel’s cross-examination of L.A., and the evidence tenderedthrough C.W., which was summarized in closing submissions by trial counsel in this way: So based on memory problems admitted by the complainant, the discrepancies between what the aunt says and what the complainantsays about various things, and the unbelievable aspects of certain parts of the stories, that there is a reasonable doubt as to whether theoffences have been committed … .

Those would be my comments. [71] Viewed in its entirety, the trial judge cannot be faulted for failing to intervene with the strategy adopted by Mr. Durocher.Defence counsel are presumed to be competent in advancing the interests of their clients and are in a better position than the trial judgeto assess the wisdom of a particular trial strategy.

For example, the majority in S.G.T. emphasized the need for trial judges to defer to thetactical decisions of trial counsel with these salient observations: [36] … There is a “strong presumption” that defence counsel are competent in advancing the interests of their clients: see R. v. G.D.B.,2000 SCC 22, [2000] 1 S.C.R. 520, at para. 27; Hodgson, at para. 99. Moreover, counsel will generally be in a better position to assessthe wisdom, in light of their overall trial strategy, of a particular tactical decision than is the trial judge.

By contrast, trial judges areexpected to be impartial arbiters of the dispute before them; the more a trial judge second-guesses or overrides the decisions of counsel,the greater is the risk that the trial judge will, in either appearance or reality, cease being a neutral arbiter and instead become anadvocate for one party. For these reasons, this Court has previously held that the burden to raise evidentiary issues properly rests on theshoulders of counsel: Hodgson, at para. 98.

[37] The corollary of the preceding is that trial judges should seldom take it upon themselves, let alone be required, to second-guess thetactical decisions of counsel. Of course, trial judges are still required to “make sure that [the trial] remains fair and is conducted inaccordance with the relevant laws and the principles of fundamental justice”: Lavallee, Rackel & Heintz v. Canada (Attorney General),2002 SCC 61, [2002] 3 S.C.R. 209, at para. 68.

However, reviewing the record from the perspective of the trial judge and taking intoaccount the factors from I.(L.R.) [ (SCC), [1993] 4 SCR 504] which were discussed above, I find no basis to concludethat the trial judge ought to have interfered with the decision of counsel to consent to the admission of the evidence.

See also R v Baxter, 2013 SKCA 52, 414 Sask R 184 (leave to appeal to the SCC refused, [2013] 3 SCR v). [72] For all of these reasons, I am not persuaded that the trial judge erred by failing to hold a voir dire of his own motion todetermine the admissibility of the Facebook messages because they were hearsay. Based on the authorities cited, the Facebook evidencein this case was presumptively admissible without a voir dire. Furthermore, there was no objection to its admission, no objection toL.A’s testimony-in-chief about the content of the Facebook messages, and no challenge to her testimony that Mr.

Durocher was theauthor of the messages. As commented above, the approach taken by defence counsel at trial was no doubt in furtherance of a strategythat did not succeed, but that alone does not make the trial judge’s approach erroneous. [73] Even if this evidence should not have gone in, I would invoke the curative provision of s. 686(1)(b)(iii) of the Criminal Code.I say this because even though the trial judge was satisfied Mr. Durocher was the author of the messages, he did not give the messagesany weight in deciding guilt or innocence. To repeat, he said, “I believe that Mr.

Durocher did send messages, but they don’t add to theallegation of the specific sexual assault” (emphasis added). The trial judge’s decision came down to the credibility of L.A. He explainedwhy he found her credible and, in the end, was satisfied beyond a reasonable doubt that Mr. Durocher had committed the offences withwhich he stood charged. 5. Authenticity and the Canada Evidence Act [74] The rules of evidence with respect to the authenticity of a document are dealt with both in common law and statute.

I will dealwith each in turn. [75] At common law, authentication is a prerequisite to the admissibility of a document at trial. The following is noted by theauthors in Law of Evidence (at 1313): §18.6 When a document is produced at trial, the prerequisite to its admission is authentication. As J. Douglas Ewart put it, “This simplymeans that the trier of fact must be satisfied that the document in issue is what it purports to be” (J.D. Ewart et al., DocumentaryEvidence in Canada (Toronto: Carswell, 1984) at 33).

Methods of authentication include viva voce testimony, common law rules andpresumptions, or statutory instruments. [76] Authentication requires the introduction of some evidence to establish that the document is what it purports to be: C.B. atpara 66, R v Hirsh, 2017 SKCA 14 at paras 18 and 24, 353 CCC (3d) 230 [Hirsch], and R v Donald (1958), (NB CA),121 CCC 304 (NBCA) at 306.

Authentication “is not onerous and may be established by direct and circumstantial evidence” (C.B. atpara 66). [77] The matter at hand concerns an electronic document and thus engages the Canada Evidence Act, RSC 1985, c C-5 [CEA],separate and apart from the common law rules: R v J.V., 2015 ONCJ 837 at para 3 [J.V.], and R v Soh, 2014 NBQB 20 at paras 32–33,416 NBR (2d) 328 [Soh].

The provisions of the CEA pertaining to electronic documents facilitate the admission of electronic documentswhile screening for threshold authenticity and integrity, which is a codification of the common law of evidence authentication (Hirsch atpara 18, and R v Ball, 2019 BCCA 32 at para 70, 371 CCC (3d) 381 [Ball]). [78]

Section 31.1 of the CEA sets out the evidential burden: Authentication of electronic documents 31.1 Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable ofsupporting a finding that the electronic document is that which it is purported to be. See also C.B. at para 64 and Hirsch at para 18. [79] The s. 31.1 requirements are restricted to electronic documents.

An electronic document is defined in the CEA and “meansdata that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by aperson or a computer system or other similar device.

It includes a display, printout or other output of that data” (CEA, s. 31.8). [80] Printouts or screen captures of Facebook messages have been found to be electronic documents within the meaning of theCEA and smart phones have been found to fall within the definition of computer system: R v Donaldson, [2016] OJ No 7153 (QL) atpara 3 (Ct J) [Donaldson], Ball at para 67, Soh at para 21, Hirsh at para 24, and C.B at para 57. [81] Importantly, though, the CEA framework does not “affect any rule of law relating to the admissibility of evidence, except forthe rules relating to authenticity and best evidence” (s. 31.7): see also Ball at para 68.

In addition to authenticity, the admissibility ofdocuments also depends on the purpose for which the materials are tendered that may, for instance, engage the hearsay rule when thedocument is adduced for the truth of its contents. The authors of Law of Evidence express the concept as follows (at 331): §6.260

Section 31.1 of the Canada Evidence Act provides the process for authenticating and a basis for admitting computer-generateddocuments where the original authors would otherwise be required. But standing alone, it does not allow for admission of hearsayevidence tendered for its truth. In order to admit computer-generated documents containing information provided by persons for the truthof their contents, either s. 30 of the Canada Evidence Act must be complied with, or some other explanation to the hearsay rule must beapplied.

[ 82 ] The burden of proof to establish threshold authenticity for purposes of s. 31.1 is low and, once satisfied, the document is admissible and available for use by the trier of fact ( C.B . at paras 67 and 68 , Hirsch at para 18, Donaldson at para 17, and Ball at para 70 ). To meet this threshold, the proponent need only provide sufficient evidence of authenticity from which the trial judge could reasonably find the document to be what it purports to be.

Once this threshold is met, the evidence is admissible, and it becomes available to the trier of fact. [ 83 ] As mentioned, circumstantial evidence can be used to establish authenticity.

In this vein, the Court of Appeal for Ontario in C.B. explained how the concept of a reply letter was used to authenticate written correspondence as being sent from one person and how that concept translates to text messages and emails: [69] At common law, correspondence could be authenticated by the “reply letter” doctrine: to authenticate correspondence as having been sent by one individual to another, evidence is adduced to show it is a reply to a letter sent to that person. As a matter of logic, the same should hold true for text messages and emails.

Evidence that A sent a text or email to B whom A believed was linked to a specific address, and evidence of a response purportedly from B affords some evidence of authenticity: David Paciocco, “Proof and Progress: Coping with the Law of Evidence in a Technological Age” (2013) 11 C.J.L.T. 181, at pp. 197–8 ( Paciocco ). [ 84 ] That said, authentication does not necessarily mean the document is genuine: “That is a question of weight for the fact-finder which often turns on determinations of credibility” (citations omitted, Ball at para 70 ).

Evidence can be authenticated even where there is a contest over whether it is what it purports to be. As Professor David Paciocco (as he then was) explained in his

article cited above, “Proof and Progress: Coping with the Law of Evidence in a Technological Age” (December 2013) 11 Can J L & Tech 181 [“Proof and Progress”], this is not because the law is interested in false documentation (at 197): It is simply that the law prefers to see disputes about authenticity resolved at the end of a case, not at the admissibility stage.

Disputes over authenticity tend to turn on credibility, and credibility is best judged at the end of the case in the context of all of the evidence. “Authentication” for the purposes of admissibility is therefore nothing more than a threshold test requiring that there be some basis for leaving the evidence to the fact finder for ultimate evaluation. In R. v. Butler , [2009 ABQB 97] 2009 CarswellAlta 1825, [2009] A.J. No. 1242 (Alta.

Q.B.) , for example, the Court recognized where there was a live issue about whether the accused generated the Facebook entries in question that would be for the jury to decide. [ 85 ] Before leaving the issue of authenticity, I wish to briefly comment on the relationship between authorship and authenticity.

Although there appears to be some confusion in some of the case authority as to whether authorship is subsumed within the concept of authentication, the better view is that these are two distinct concepts giving rise to two distinct tests: see, for example, Soh , R v Hamdan , 2017 BCSC 676 , 349 CCC (3d) 338 [ Hamdan ], and R v Moazami , 2013 BCSC 2398 [ Moazami ]. Hirsch , from this Court, speaks of authorship as a related issue to authentication, but it does not say that it is synonymous (at para 18).

This conclusion stands to reason since, as explained in Graham Underwood and Jonathan Penner, Electronic Evidence in Canada , loose-leaf (Rel 1, 2016) vol 1 (Toronto: Thomson Reuters, 2010), authorship and authentication speak to two different concerns (at 13-11): It is also important to note that establishing the authenticity of an electronic document is not necessarily synonymous with demonstrating its authorship.

The relationship between authenticity and authorship for electronic documents is not reciprocal; demonstrating authorship is sufficient to establish authenticity, but establishing authenticity of an electronic document does not necessarily provide strong evidence of authorship. (Footnotes omitted) [ 86 ] The second requirement of the CEA is the best evidence rule. At common law, the best evidence rule requires the proponent of a record to produce the original record or the next best available record ( Law of Evidence at 1324).

This concept was further elaborated on in Hirsch : “The purpose of the best evidence rule is to assist the trier of fact with the verification of the integrity of documents because alterations are more readily detectable on an original” (at para 23). [ 87 ] The concept of original is ill-suited to electronic documents because their inherent nature makes it often not possible to provide direct evidence of their integrity (“Proof and Progress” at 195). Accordingly, s. 31.2 to s. 31.8 of the CEA set out the means by which document integrity can be met with electronic documents.

Such a means is discussed as follows in “Proof and Progress” (at 200): Given the generous statutory conception of an original document, the primary role the “best evidence” provisions of the Canada Evidence Act play is as merely as an adjunct to authenticity. The provisions exist, not so much to assure that the best evidence is presented, but to provide some further assurance that the document provided to the courts is the same as the one that was input into the computer. [ 88 ]

Section 31.3 is of particular relevance to the within matter. It establishes a list of statutory presumptions of integrity with regard to an electronic document system. These presumptions apply in the absence of evidence to the contrary: Presumption of integrity 31.3 For the purposes of subsection 31.2(1), in the absence of evidence to the contrary, the integrity of an electronic documents system by or in which an electronic document is recorded or stored is proven (

a) by evidence capable of supporting a finding that at all material times the computer system or other similar device used by the electronic documents system was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity of the electronic document and there are no other reasonable grounds to doubt the integrity of the electronic documents system; (

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

c) if it is established that the electronic document was recorded or stored in the usual and ordinary course of business by a person who is

not a party and who did not record or store it under the control of the party seeking to introduce it. [ 89 ] These presumptions are aimed at providing some assurance that no changes in the information found in the document have been caused by technical reasons or human intervention. As noted in Hirsch ,

section 31.3(b) “provides for a presumption of integrity in the circumstances where a party has established that the electronic document the party seeks to adduce into evidence was recorded or stored by another party who is adverse in interest to the party seeking to introduce it” (emphasis in original, at para 24). [ 90 ] Returning to the CEA framework as a whole, Hirsch adopted a “functional approach” to its application.

Other courts across this country have taken a similar approach: see, for example, Soh , Ball , and R v K.M. , 2017 ONSC 4769 [ K.M. ]. [ 91 ] With those principles in mind, I return to the case at hand. To begin, I am satisfied that the Facebook messages tendered by the Crown were electronic documents within the meaning of the CEA and, as such, compliance with that legislative framework for authentication and integrity was required.

Unfortunately, neither the Crown (which bore the burden of satisfying the CEA requirements) nor defence counsel identified the applicability of this legislative regime to the trial judge. That said, taking a functional approach to the assessment of this issue, and having regard to the record and the trial judge’s reasons, I am satisfied that the trial judge was sufficiently alive to the issues of authentication and integrity, even though he did not specifically allude to s. 31.1 of the CEA . [ 92 ] L.A. told the police officer about the Facebook messages the day after she was kicked out of C.W.’s house.

She subsequently gave a statement to a police officer. A transcript of that police interview was played at trial and admitted into evidence as exhibit P-1 and the video as P-3. L.A. also gave viva voce testimony at trial. She testified that she was certain the Facebook messages came from Mr. Durocher. L.A.’s testimony and the following facts were before the trial judge: (

a) she was his Facebook friend; (

b) she described the content of Mr. Durocher’s home page as containing his name in bold and underlined lettering; (

c) the responses to her messages bore her name; (

d) she identified the messages she had sent in response and her responses bore her name; (

e) the messages from the sender contained sexual content with an invitation for sexual activity; (

f) she was able to access the messages from her smart phone; (

g) the sender used the word tatanka that, in the Dakota language, means buffalo ; (

h) the messages received by L.A. were contemporaneous with the alleged assaults; and (

i) some of L.A.’s messages, in the chain of messages, were met by a further message from the sender. [ 93 ] The cross-examination of L.A. provided further evidence of authenticity, or at least did not undermine it. As noted above, L.A. was not challenged on her evidence that it was Mr. Durocher who had sent the Facebook messages. Thus, her evidence on this point can be seen as uncontroverted. Defence counsel, instead, probed L.A about when she had received the messages relative to when she had resided at C.W.’s residence and about other people in the home who may have had access to Mr. Durocher’s mobile device.

L.A. confirmed the former but had no knowledge of the latter. [ 94 ] Bearing in mind the low bar needed to establish authenticity for purposes of threshold admissibility under the CEA , I am satisfied that L.A. provided som e evidence capable of supporting a conclusion that exhibit P-2 was what L.A. claimed it to be. The content of the messages and their timing is consistent with the relevant events involving Mr. Durocher. The trial judge, who had the benefit of observing L.A. on the stand, found her to be visibly upset and disturbed when the messages were shown to her in examination- in-chief.

In light of L.A.’s uncontroverted evidence about the content of the messages, the lack of any cross-examination on this evidence, and defence counsel’s concession concerning the admissibility of exhibit P-2, I am hard-pressed to find error on the part of the trial judge. [ 95 ] As to the second part of the s. 31.1 requirements – document integrity – neither party raised this issue and the trial judge did not address it. That said, no evidence to the contrary was presented and there was no reasonable basis to doubt the integrity of the electronic document system, i.e., L.A.’s smart phone.

While defence counsel took issue with whether Mr. Durocher was the author of the Facebook messages at trial, there was no suggestion that the messages might have been altered or tampered with. I am satisfied that the presumption of integrity set out in s. 31.3 (

a) and s. 31.3 (

b) of the CEA applied. L.A. was never challenged on her evidence and, as such, the presumptions were not rebutted by Mr. Durocher. [ 96 ] Since the Crown sought to adduce electronic documents into evidence, it would have been preferable for the trial judge to have conducted a voir dire to determine threshold authenticity and integrity. However, bearing in mind the low bar attached to s. 31.1 , the functional approach adopted by the courts with regard to its application, the presumption of integrity under the CEA and the fact the trial judge ultimately found Mr.

Durocher was the author of the Facebook messages, I am satisfied that the evidence adduced by the Crown was capable of authenticating the Facebook messages. C. Did the trial judge err by ignoring material evidence? [ 97 ] Mr. Durocher argues the trial judge improperly rejected or disregarded three key pieces of evidence that were material to his defence and should have been considered in rendering his verdict. [ 98 ] The first such piece of evidence is found in the cross-examination of L.A. on the video-recorded statement she gave to the police.

She told the officer she did not feel her family would believe her allegations about Mr. Durocher. Defence counsel asked L.A. to

explain why she thought her family would disbelieve her. L.A. did not back down from what she had told the police and provided severalexamples to illustrate her point: she said she was a runaway and had lied about smoking pot. Defence counsel then asked L.A., “theydon’t think that you’re honest, do they?” The trial judge interrupted this line of questioning by stating, “I -- I ignore those answers. Imean, she doesn’t know what her family thinks. What -- what -- they -- if they believe her, don’t believe her.

If they want to testify, fineand dandy, but I don’t put any stock in it”. [99] I see no error with how the trial judge handled this line of questioning. The defence strategy was to discredit L.A byimpeaching her credibility through cross-examination. As a matter of law, defence counsel is given wide berth to the questions that maybe asked under cross-examination, but there are limits to its permissible scope.

For instance, “[c]ounsel cannot, under the guise of cross-examination, circumvent other rules of evidence by asking a question, the answer to which would be inadmissible if offered in chief”(footnotes omitted, Law of Evidence at 1224). [100] In this case, the question posed by defence counsel invited L.A. to speculate about what other people think of her. This line ofquestioning was improper, and the evidence sought to be adduced from L.A. was no more than her best guess about what other peoplethought of her.

With a strategy of undermining L.A.’s credibility, it was open to defence counsel to put specific facts or events to L.A. todemonstrate instances of past untruthfulness on her part from which the trial judge could draw an inference that L.A. was not alwaystruthful and therefore should not be believed. The other option open to defence was to call family members as witnesses.

Defencecounsel chose neither course of action. [101] In a further effort to undermine L.A.’s credibility, defence counsel asked C.W. whether she believed L.A. was an honest person.This question called for C.W. to provide an opinion about L.A.’s truthfulness, not to testify about facts or events within her knowledge.The trial judge also stopped this line of questioning. He said, “Well, it’s irrelevant from this witness whether she thinks [L.A. is] honest… I have to make a determination with respect to this charge”.

Although the trial judge did not expressly say so, what I take him to havesaid is that it was within his province, as the trier of fact, to make credibility findings. While there is some authority for the propositionthat evidence as to a general reputation in the community for untruthfulness may be admissible, we need not explore this further. Thisaspect of the issue was not raised by defence counsel and the question was not cast in that form. [102] In my view, the trial judge did not err with how he handled this question.

As the Ontario Court of Appeal explained in R vClarke (1998), (ON CA), 112 OAC 233 (CA), “Where the outcome of the case depends upon the evidence of asingle witness, an expression of opinion as to that witness’ veracity is a comment on the ultimate issue” (at para 51). [103] The final piece of evidence said to have been ignored by the trial judge concerns C.W.’s testimony about her nephew. C.W. hadtestified that the nephew constantly accompanied Mr. Durocher.

While the trial judge did not prohibit this line of questioning in thecourse of C.W.’s testimony, he challenged counsel on the weight to be assigned to it in counsel’s closing submissions. He commentedthat C.W. could not possibly know the nephew always followed Mr. Durocher around because C.W. wasn’t there all the time. [104] I agree with the trial judge and see no merit to Mr. Durocher’s argument. A trial judge is entitled to engage counsel in closingargument.

As part of trial management, it is the trial judge’s prerogative to probe the submissions of counsel and to even express adifferent view of the evidence: see, for example, Siemens v Howard, 2018 BCCA 197, [2018] 10 WWR 1. Comments made by a trialjudge at this stage of the proceedings should not, without more, be interpreted as a finding of fact or a predetermination of any issue. Inany event, it is clear from the trial judge’s reasons that he took C.W.’s evidence on this point into consideration, but chose to give it littleweight. He said, “And [C.W.] also provided comment on her belief that Mr.

Durocher was never, ever alone with L.A. She may believethat, but she can’t really testify to it”. In light of how the trial judge saw the evidence, Mr. Durocher really takes issue with the weightassigned to C.W.’s evidence by the trial judge on this point. It is well recognized that a trier of fact is best positioned to assign theappropriate weight to the evidence heard at trial and that this determination is a question of fact, subject to a deferential standard ofreview (R v Alves, 2014 SKCA 82 at para 57, 314 CCC (3d) 313). [105] Respectfully, the trial judge did not err by ignoring material evidence. D.

Did the trial judge err by rejecting defence argument as stereotypicalreasoning? [106] In his oral reasons, the trial judge rejected the notion that all victims of sexual assault fight back or scream. He noted thefollowing: “It is a sexual assault myth that there is a normal or typical reaction to a sexual assault, and that is that it’s to fight back andscream. I will not dignify that argument with further comment”. [107] On appeal, Mr. Durocher argues this statement amounts to a categorical rejection of the trial evidence that portrayed L.A. as lessthan credible.

He argues that, under the rubric of a “sexual assault myth”, the trial judge simply swept aside the balance of the evidencethat called into question whether L.A. was, in fact, scared or afraid and therefore whether she should be believed. While Mr.

Durocheragrees that sexual assault victims do not necessarily display the same type of behaviors in response to an assault, he argues the presenceor absence of L.A.’s conduct, at the time of the assaults, is evidence that should have been considered in assessing her credibility andthat the trial judge erred in outright dismissing the evidence about her failure to scream or fight back. [108] The Alberta Court of Appeal in R v A.R.D., 2017 ABCA 237, [2017] 11 WWR 508, [A.R.D.-CA] (aff’d 2018 SCC 6, [2018] 1SCR 218 [A.R.D.-SCC]), dealt with evidence about a complainant’s conduct towards an accused after an alleged sexual assault.

Theappellant in that case had been acquitted of three sexual offences alleged to have been committed against his stepdaughter when she wasbetween the ages of 11 and 16. The trial judge acquitted the accused solely on the lack of any evidence showing the complainantdisplayed “avoidant behavior” toward the accused after the alleged assaults.

The trial judge’s reasoning was quoted in A.R.D.-CA: [23] Immediately thereafter, the trial judge gave these reasons for acquitting the respondent: Having said all of that, however, given the length of time that these events occurred over, and the fact that the most serious event

occurred months before [the complainant] complained, I would have expected some evidence of avoidance either conscious or unconscious. There was no such evidence. As a matter of logic and common sense, one would expect that a victim of sexual abuse would demonstrate behaviors consistent with that abuse or at least some change of behavior such as avoiding the perpetrator [emphases added by Paperny J.A. in A.R.D.-CA ]. The trial judge found this incongruity gave rise to a reasonable doubt. [ 109 ] The Court of Appeal split on whether the aforesaid comments evinced legal error.

The majority concluded that, by focussing on the absence of avoidant behavior sexual assault victims would be expected to display toward their perpetrator, the trial judge based his credibility assessment of the complainant on inappropriate judicial stereotyping and not on a proper evidentiary foundation.

The majority in A.R.D.-CA said as follows on this point: [45] Moreover, although it is trite that reasonable doubt leading to an acquittal can rest on an “absence of evidence”, the absence of evidence found here – no evidence of avoidance or change in behaviour – appears to be based solely on the trial judge’s impermissible reliance on his own unmet expectation, rather than on a clearly articulated and full assessment of the complainant’s police statement or trial testimony.

In the result, the trial judge misdirected himself by basing his credibility assessment of the complainant not on a proper evidentiary foundation, but on inappropriate judicial stereotyping, a point ably made by the Manitoba Court of Appeal in R v RGB , 2012 MBCA 5 at para 59 , 287 CCC (3d) 463: [59] To sum up, because credibility findings are questions of fact, the Crown generally has no right to appeal from an acquittal on a ground that alleges an error with respect to such a finding.

Similarly, the Crown cannot appeal a judge’s conclusion that there exists a reasonable doubt, as that does not raise a question of law. Nevertheless, the credibility of a witness should be judged on the evidence before the judge, not on stereotypical assumptions.

A judge would err in law if there is a sound basis to conclude, on appellate review, that a credibility finding was not based on a proper evidentiary foundation, but rather on inappropriate judicial stereotyping . [46] We agree that an evaluation of the “actual evidence” in a given case is the proper means to assess whether the Crown has met its burden of proof beyond a reasonable doubt.

Where however, that evidence and its relevance is not clearly identified by the trial judge, and the complainant’s credibility is instead assessed solely in comparison to what the trial judge concludes would be “expected” post- sexual assault behaviour by a complainant, in our view that evaluation is fully rooted in reliance on impermissible reasoning based on myths and stereotypes. (Bold emphasis in original, underline emphasis added by Paperny J.A. in A.R.D.-CA ) [ 110 ] In his dissenting opinion, Slatter J.A. did not disagree with the general proposition that reliance on presumptions of normative behavior by sexual assault victims amounts to impermissible stereotypical reasoning.

That said, Slatter J.A. held that commenting on the lack of evidence of avoidant behavior was permissible and open to the trial judge in evaluating the factual context of that case. [ 111 ] A.R.D.-CA was upheld by the Supreme Court in A.R.D.-SCC . In a short decision, the Supreme Court said as follows: [2] We would dismiss, substantially for the reasons of the majority of the Court of Appeal.

In considering the lack of evidence of the complainant’s avoidance of the appellant, the trial judge committed the very error he had earlier in his reasons instructed himself against: he judged the complainant’s credibility based solely on the correspondence between her behaviour and the expected behaviour of the stereotypical victim of sexual assault. This constituted an error of law.

We do not read the majority reasons, including paras. 39 and 41 highlighted by the defence, as suggesting otherwise. [ 112 ] For purposes of this appeal, it is useful to point out that both the majority and dissenting opinions in A.R.D.-CA started from the same general proposition: victims of a sexual assault react differently to sexual assaults and that generalizations about how sexual assault victims react is impermissible stereotyping ( A.R.D.-CA at para 42 and 97 ; see also R v D.D. , 2000 SCC 43 at para 63 , [2000] 2 SCR 275).

The majority and the dissenting reasons in A.R.D.-CA also agreed that to properly assess whether the Crown has met its burden of proof beyond a reasonable doubt, the trier of fact must evaluate the actual trial evidence. [ 113 ] With those principles in mind, I turn to the facts of this case and the two arguments Mr. Durocher makes under this ground of appeal. First, in his written material, Mr. Durocher argues the Crown was required to establish that L.A.’s behavior was reasonable.

He submits the trial judge erred by failing to address each piece of evidence and explain why he accepted or rejected it; or, if it were accepted, erred by failing to provide an explanation for the weight assigned to the particular piece of evidence. [ 114 ] I disagree with both propositions. Like all prosecutions, the Crown was required to establish the elements of the two offences beyond a reasonable doubt. It did not have to establish that L.A.’s behavior at the time of the alleged assaults was reasonable.

Neither is it the law that a trial judge is obliged to address each and every piece of evidence and explain why it was accepted or rejected, or – if it was accepted – go on to explain the weight assigned to that evidence ( R v J.M.H ., 2011 SCC 45 at para 32 , [2011] 3 SCR 197). [ 115 ] This brings me to the second prong of Mr. Durocher’s argument. Here, Mr. Durocher argues the trial judge was obliged to consider L.A.’s response to the alleged assaults – that is, in assessing her credibility, he had to take into account her failure to scream or fight back. He argues

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