B. Greenshields

During a criminal proceeding, the defendants applied to exclude recordings of intercepted conversations.

The Crown sought to admit sessions 381 and 842.

The court found that portions of session 381 were sufficiently audible and contextualized to be admitted, while prejudicial portions regarding personal drug use were excluded.

The court ruled that session 842 was inadmissible hearsay, as the statements had no evidentiary value unless admitted for the truth of their contents.

In a voir dire during a criminal proceeding, the Crown sought to admit evidence of web-browsing intercepts and MMS messages allegedly captured from the accused's cell phone using novel police interception software.

The court reviewed the requirements for authenticating electronic documents under sections 31.1 to 31.3 of the Canada Evidence Act.

The court found that the police witness lacked the necessary expertise and actual knowledge to confirm that the intercepted data accurately reflected what was accessed or displayed on the accused's device.

As the technology was novel and untested by the police, and no expert evidence or corroborating data was provided, the Crown failed to authenticate the electronic documents.

The evidence was ruled inadmissible.

During a sexual assault trial, the court held a ruling on whether the defence of honest but mistaken belief in communicated consent should be left with the jury.

The alleged assault occurred in a dark room where multiple people were sleeping after consuming alcohol.

The accused claimed the complainant initiated sexual contact, while the complainant testified she awoke to being assaulted and did not consent.

Applying the air of reality test, the court found that the accused's evidence, if assumed true, put the defence in play.

The court ruled the defence would be left with the jury, as it was for the jury to assess whether the accused took reasonable steps to ascertain consent.

The Crown brought an application for directions regarding the procedure to review documents seized from the respondent's residence over which solicitor-client privilege was asserted.

The Crown proposed providing the respondent with a copy of the USB key containing the documents so she could identify privileged materials, while the defence argued for a third-party referee.

The court accepted the Crown's proposal, finding it sensible and protective of the respondent's rights as the privilege holder, and ordered the respondent to review the documents within 60 days.

During a criminal trial, the Crown sought to elicit from its witness in chief that she had given a previous inconsistent statement because she was afraid of the accused.

The defence objected, arguing this constituted impermissible oath-helping.

The court ruled that eliciting the fact of a previous inconsistent statement in chief does not constitute oath-helping, as it detracts from rather than bolsters the witness's truthfulness.

However, the court held that the explanation for the previous statement should generally wait for cross-examination and re-examination.

The Crown was permitted to elicit the fact of the previous statements and the timing of the witness's change of heart.