COURT OF APPEAL FOR ONTARIO

DATE: September 3, 2019

DOCKET: C64876

Judges: Simmons, Tulloch and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.H.

Appellant

Counsel:

Michael Dineen, for the appellant

Dale E. Ives, for the respondent

Heard: March 11, 2019

On appeal from the convictions entered and the sentence imposed by Justice James C. Crawford of the Ontario Court of Justice on December 4, 2017.

MAJORITY OPINION

Simmons J.A.:

A. INTRODUCTION

[1] The appellant was present with six other people at a rural residence near Bradford when police executed a search warrant at 5:45 a.m. on September 23, 2015. The appellant answered the door when the police arrived. In response to an officer's question, the appellant told the police there was nothing in the home that would hurt them. He also acknowledged that he had oxycodone pills in a book bag and a bag of marijuana on a table in the living room. The police discovered an ounce of cocaine in a small safe in the basement and 50 marijuana plants growing outside the house.

[2] The appellant was charged with, and subsequently convicted of, possession of cocaine for the purpose of trafficking, possession of oxycodone, production of marijuana, and possession of marijuana for the purpose of trafficking. C.H., a young person alleged to be the appellant's son, who was present at the residence when the search warrant was executed, was also charged with various offences.

[3] At the appellant's trial, the Crown relied heavily on evidence relating to data extracted from a Samsung cell phone found in the basement of the residence. The evidence was used to support inferences that the cell phone belonged to C.H., that C.H. was the appellant's son, that the appellant and C.H. lived in the same household, and that they were jointly involved in production of marijuana and trafficking in marijuana and cocaine. This evidence included information about an e-mail address used by the Samsung cell phone user, which mirrored C.H.'s forename and surname initial; the telephone number of a contact identified as "Dad" in the cell phone contacts list; and the telephone number assigned to the Samsung cell phone. It also included an extraction report isolating over 900 text messages allegedly exchanged between the appellant and C.H. and opinion evidence relating to drug-related terminology allegedly contained in some of the text messages.

[4] In addition to the evidence about the data from the Samsung cell phone, the Crown also relied on evidence from the officer-in-charge to support inferences that the appellant and C.H. were father and son and that the telephone number associated with "Dad" in the Samsung cell phone contacts list was the appellant's. The officer-in-charge said that he knew the appellant and C.H. to be father and son because he had dealt with both in the past and had arrested C.H. previously. Further, he believed the telephone number associated with "Dad" in the Samsung cell phone contacts list was the appellant's because, upon being arrested in a subsequent investigation, the appellant identified it as his telephone number.

[5] The appellant did not call evidence at trial. In closing argument, defence counsel at trial (not Mr. Dineen) raised no issue regarding the charges for possession of oxycodone and marijuana arising from the appellant's acknowledgement of their possession at the time of the search. However, defence counsel argued that, apart from the officer-in-charge's conclusory statements that the appellant lived at the residence from which the drugs had been seized, the Crown had led no evidence to establish that fact. Further, defence counsel submitted that the evidence on which the Crown relied to establish the appellant's cell phone number, his relationship with others found in the home, including C.H., and the Samsung cell phone number was hearsay. Following a Crown objection, the trial judge ruled that defence counsel's failure to cross-examine the officer on at least some of these subjects violated the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.). The trial judge therefore permitted the Crown to recall the officer-in-charge to give further evidence concerning the basis for his beliefs about the appellant living at the residence, the appellant's cell phone number, and the appellant's relationship with the other people found at the residence.

[6] The trial judge also requested and received written submissions concerning the admissibility of the data extracted from the Samsung cell phone and the related extraction report isolating text messages allegedly exchanged between the appellant and C.H. He ultimately ruled that the evidence met the "best evidence rule" admissibility requirement under s. 31.3(b) of the Canada Evidence Act, R.S.C. 1985, c. C-5. That section creates a presumption of integrity for an electronic documents system arising from storage of an electronic document by a party adverse in interest. Further, the trial judge found the appellant's text messages admissible as statements of an accused person and C.H.'s statements admissible "either on the basis of apparent common design relating to the drugs, or simply to prove context to the [appellant's] statements." Relying on the whole of the evidence, the trial judge found the appellant guilty of the offences charged.

[7] The appellant raises three issues on his conviction appeal. First, he argues the trial judge erred in finding the rule in Browne v. Dunn was engaged and in allowing the Crown to split its case by recalling the officer-in-charge. Second, he argues that the trial judge erred in relying on s. 31.3(b) of the Canada Evidence Act to hold that the evidence relating to the data extracted from the Samsung cell phone satisfied the best evidence rule. Third, he argues that the trial judge erred in admitting and relying on the officer-in-charge's evidence that he had no doubt that the text messages at issue were exchanged between the appellant and C.H.

[8] For the reasons that follow, I would dismiss the conviction appeal. The Crown concedes that the trial judge erred in relying on s. 31.3(b) of the Canada Evidence Act to hold that the data extracted from the Samsung cell phone met the best evidence rule admissibility requirement. However, the Crown argues, and I agree, that the data satisfied that requirement under s. 31.3(a) of the Canada Evidence Act, which creates a presumption of integrity for an electronic documents system arising from storage of an electronic document on a properly operating electronic documents system. I also agree that no substantial wrong or miscarriage of justice arises from this error, because it was trivial in the circumstances. Further, even assuming the trial judge made the second and third errors alleged, I am satisfied the other evidence adduced at trial, including the extracted data, overwhelmingly supported the convictions.

[9] I would allow the sentence appeal, in part, by setting aside the victim fine surcharge, but otherwise dismiss the sentence appeal as abandoned.

B. ADMISSIBILITY OF CELL PHONE EVIDENCE

(i) Introduction

[10] Sections 31.1, 31.2, and 31.3 of the Canada Evidence Act prescribe the manner in which electronic documents can meet the common law authenticity and best evidence rules, which impose threshold requirements for the admissibility of documents at a trial. In addition to these threshold requirements, electronic documents – like any other form of document – must satisfy common law or statutory admissibility rules to support the admission of their contents.

[11] The trial judge found that the electronic data evidence introduced in this case met the authenticity and best evidence rule requirements set out in the Canada Evidence Act. He also found the evidence admissible for the truth of its content. On appeal, the sole challenge to these rulings is the trial judge's reliance on s. 31.3(b) of the Canada Evidence Act to support satisfaction of the best evidence rule. As I have said, the Crown concedes the trial judge's reliance on s. 31.3(b) was in error, but argues the evidence was properly admissible under s. 31.3(a).

(ii) Discussion

[12] Section 31.2 of the Canada Evidence Act describes two ways in which the best evidence rule can be met. The first is "on proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stored": s. 31.2(1)(a). The second is "if an evidentiary presumption under s. 31.4 applies." Section 31.2 reads as follows:

31.2(1) The best evidence rule in respect of an electronic document is satisfied

(a) on proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stored; or

(b) if an evidentiary presumption established under section 31.4 applies.

(2) Despite subsection (1), in the absence of evidence to the contrary, an electronic document in the form of a printout satisfies the best evidence rule if the printout has been manifestly or consistently acted on, relied on or used as a record of the information recorded or stored in the printout.

[13] In this case, the Crown relies on s. 31.2(1)(a), under which the best evidence rule can be satisfied by proof of the integrity of the electronic documents system on which an electronic document is stored. Section 31.3 describes three methods by which, "in the absence of evidence to the contrary", the integrity of an electronic documents system may be proven. Paraphrased, those methods are:

• presumption of integrity of an electronic documents system arising from evidence capable of supporting a finding of storage of the electronic document[s] on a properly operating computer or other similar device (s. 31.3(a));

• presumption of integrity of an electronic documents system arising from storage of an electronic document by a party adverse in interest (s. 31.3(b)); and

• presumption of integrity of an electronic documents system arising from storage of an electronic document in the usual and ordinary course of business (s. 31.3(c)).

[14] Subsections 31.3(a) and (b) are the relevant provisions for the purposes of this appeal. Those subsections read as follows:

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.

[15] The Crown acknowledges that because it alleged that the Samsung cell phone belonged to C.H. – and because C.H. was not the accused in this case – s. 31.3(b), on which the trial judge relied, does not apply. Rather, on appeal, the Crown relies on s. 31.3(a) and argues that the evidence led at trial was "capable of supporting a finding that at all material times the [Samsung cell phone] was operating properly, or, if it was not, the fact of its not operating properly did not affect the integrity of the electronic document[s relied on by the Crown] and there are no other reasonable grounds to doubt the integrity of the [Samsung cell phone] system."

[16] The appellant resists this argument on two bases. First, he submits that the Crown did not claim at trial that it had led evidence to satisfy the requirements of s. 31.3(a). Second, he argues that, to satisfy the best evidence rule, the Crown should have called C.H. as a witness at trial to confirm the text messages introduced in evidence were sent or received. Alternatively, the Crown could have adduced evidence of testing the Samsung cell phone to ensure the text messaging function was operating properly. As the Crown failed to adduce either form of evidence, it could not satisfy the best evidence rule.

[17] I accept the Crown's submission that the evidence adduced at trial was capable of supporting a finding that the Samsung cell phone was functioning properly at all material times or, if it was not, that any malfunction did not affect the integrity of the electronic documents relied on by the Crown, and that there are no other grounds to doubt the integrity of the electronic documents system. I am also satisfied that the Crown is entitled to rely on s. 31.3(a) on appeal and that no substantial wrong or miscarriage of justice arises from the trial judge's reliance on s. 31.3(b).

[18] The Crown called four witnesses at trial: i) police officer Justin Ford, who extracted the data from the Samsung cell phone; ii) police officer Mitch Dietrich, who acted as the exhibits officer when the search warrant was executed; iii) police officer Jeff Varey, who prepared the extraction report and was the officer-in-charge of executing the search warrant; and iv) police officer Steven Martell, who was qualified to give expert opinion evidence concerning trafficking in cocaine and marijuana.

[19] Officer Ford explained that he used a read-only forensic extraction device (a UFED Touch) to unlock, extract data from, and create, in disc format, a copy of the Samsung cell phone. He testified that he is a trained and certified operator of the UFED Touch, that he verified that the disc accurately reflected data from the Samsung cell phone, and that it included deleted content. He also explained that once the cell phone was unlocked, he was able to obtain from it its assigned telephone number, which ended with 0137, and the user's e-mail address. The e-mail address corresponded with the first letter of C.H.'s (the young person alleged to be the appellant's son) surname and his complete forename.

[20] Officer Ford provided a disc containing a copy of the information on the Samsung cell phone and a "reader" program associated with the UFED to officer Varey. Officer Ford explained that the reader program could generate extraction reports isolating text messages between the cell phone from which the data was extracted (the "source data cell phone") and another party. In doing so, the reader program would populate the report with both the telephone number of the other party and the associated name in the source data cell phone's contact list.

[21] While in the witness box, officer Ford examined an extraction report, created by officer Varey, which was marked as exhibit 3B at trial. The extraction report isolated text messages sent primarily between the Samsung cell phone and a telephone number ending with 6847, which was associated with the contact name "Dad" in the Samsung cell phone contacts list. Officer Ford confirmed that a status column on the extraction report indicated whether a text message received on the Samsung cell phone had been read or was simply waiting in the inbox. The status column on the extraction report also confirmed whether a text message sent on the Samsung cell phone had been sent and read or whether its status was sent and "unknown". Another column on the extraction report indicated whether the message box contained deleted, but recovered, content.

[22] A review of the extraction report marked as exhibit 3B reveals a record of 965 purported text messages, listed in reverse chronological order, between the Samsung cell phone and the 6847 number. The purported text messages ranged in date from April 17, 2015 to September 22, 2015, the day before the execution of the search warrant. A review of the purported text messages reveals consistently coherent conversations between the sender and recipient, some examples of which are the following:

Folder	Party	Time	Status	Message
14	Sent To +1****6847 Dad	18/09/2015 12:06:00 PM	Sent	Dad can u get jars cuz dis stuff is down hanging we just gotta jar it now
13	Inbox From +1****6847 Dad	18/09/2015 12:29:24 PM	Read	If I get chance though t you had some
12	Sent To +1****6847 Dad	18/09/2015 12:47:23 PM	Sent	I dis i dk where they went
32	Inbox From +1****6847 Dad	15/09/2015 9:02:02 AM	Read	We need to go pick that one plant today it's done
31	Sent To +1****6847 Dad	15/09/2015 11:30:22 AM	Sent	A ight are u home wanna go do it in a abit
30	Inbox From +1****6847 Dad	15/09/2015 11:32:51 AM	Read	I'm not at home but I'll come in a bit about hour or two it's differently has to be picked though
38	Inbox From +1****6847 Dad	13/09/2015 5:38:28 PM	Read	No more netflix cause my Internet is over limit already
37	Sent To +1****6847 Dad	13/09/2015 7:08:33 PM	Sent	What I just started using it

[23] Officer Varey confirmed that, in addition to exhibit 3B, the disc prepared by officer Ford revealed thousands of other text messages exchanged between the Samsung telephone and other recipients as well as photographs. He also stated that the Samsung cell phone was in good working order.

[24] In my view, an examination of exhibit 3B in combination with the evidence of officers Ford and Varey is manifestly capable of supporting a finding that, at all material times, the Samsung cell phone was working properly or if it was not, that any malfunction did not affect the integrity of the electronic documents relied on by the Crown, and that there are no other reasonable grounds to doubt the integrity of the electronic documents system.

[25] In my view, the requirement in s. 31.3(a) of the Canada Evidence Act for "evidence capable of supporting" the relevant findings represents a low threshold. This is apparent when s. 31.3(a) is read in context with, for example s. 31.3(b), which requires that it be "established" that an electronic document was recorded or stored by a party adverse in interest.

[26] Exhibit 3B, when reviewed in the light of officers Ford and Varey's evidence reveals the presence of numerous text messages stored in chronological order and customary format, demonstrating coherent conversations, between a sender and a recipient that had been both sent and received by the Samsung cell phone. The extraction report also indicated that numerous messages had been read by a recipient.

[27] Further, the conversations on the extraction report are contextually consistent with other facts in this case. For example, there are references to a dog and a pig in the text messages. According to officer Varey's initial evidence, both a dog and a pig were present when the search warrant was executed. No basis for questioning the integrity of the electronic documents system has been suggested on appeal or in the court below.

[28] In my view, the appellant's arguments that it was necessary that the Crown call C.H. to verify the content of the text messages or provide evidence of testing the Samsung cell phone text messaging system is misconceived. In the context of the evidence adduced in this case, that would amount to requiring that it be established that, at all material times, the Samsung cell phone was operating properly. That is not the threshold under s. 31.3(a).

[29] Similarly, I reject the appellant's argument that the fact that the Crown did not argue that it had satisfied s. 31.3(a) in the court below should foreclose its reliance on that section on appeal. As noted in R. v. C. (W.B.), 130 O.A.C. 1, the Crown, as respondent, is entitled to advance any argument to sustain the conviction that can be based on the record made at trial (citing R. v. Perka, [1984] 2 S.C.R. 232 at 238-40; Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631 at 643-4; R. v. Keegstra, [1995] 2 S.C.R. 381 at 398).

[30] In my view, the evidence at trial clearly satisfied the requirements of s. 31.3(a). The appellant did not argue on appeal that he would have adopted a different trial strategy had the Crown relied on s. 31.3(a) at trial. In any event, had the appellant been in a position to lead "evidence to the contrary" calling into question the integrity of the electronic documents system, he should have done so regardless of which subsection of s. 31.3 on which the Crown relied.

[31] As the impugned evidence was properly admissible at trial, and as no valid concern about prejudice has been raised, I conclude that the trial judge's reliance on s. 31.3(b) of the Canada Evidence Act instead of s. 31.3(a) was a minor error that did not affect the outcome of the trial.

C. OTHER GROUNDS OF APPEAL

[32] As I have said, the appellant's second ground of appeal is that the trial judge erred in permitting the Crown to split its case by recalling officer Varey to give additional evidence to support his earlier assertions that the appellant lived at the residence where the search warrant was executed, that C.H. was the appellant's son, and that the appellant had told him during an earlier investigation that the 6847 phone number was his.

[33] The appellant's third ground of appeal is that the trial judge erred in relying on inadmissible opinion evidence elicited by the Crown from officer Varey that he had no doubt that the text messages in exhibit 3B were exchanged between the appellant and his son.

[34] I would not give effect to these grounds of appeal. Even assuming the trial judge erred as alleged, I conclude that the other evidence adduced at trial overwhelmingly supported the appellant's convictions.

[35] In reaching this conclusion, I have considered what appear to be two factual errors by the trial judge that the appellant did not raise on appeal but which the panel raised with counsel in post-hearing correspondence.

[36] The first such error is that, although the trial judge correctly noted that the police seized three cell phones during the execution of the search warrant, he erroneously described the cell phone from which data was extracted and for which the extraction report marked as exhibit 3B was prepared as being an iPhone seized from C.H. The police evidence at trial was that the data that formed the subject matter of exhibit 3B was extracted from the Samsung cell phone found in the basement.

[37] The second error is that, in his Browne v. Dunn ruling, the trial judge said voluntariness had been conceded regarding conversations between the appellant and police officers. While that statement is accurate in relation to conversations between the appellant and the police during the execution of the search warrant, I could find no such concession in relation to officer Varey's evidence about the appellant's disclosure of his cell phone number to the police.

[38] In post-hearing correspondence, the Crown argued that although defence counsel at trial did not specifically state there was no issue with voluntariness concerning the appellant's cell phone number, he effectively advised the court by his conduct and his words that a voir dire was not wanted or required. However, given the high onus on trial judges in relation to voluntariness, the absence of a specific concession, and the absence of any explanation for the finding of a concession, I will proceed on the basis that the trial judge erred in failing to hold a voluntariness voir dire concerning the cell phone number. Nonetheless, despite these apparent errors, in my view, the admissible evidence at trial overwhelmingly supported the appellant's convictions.

[39] As noted above, when the Samsung cell phone was unlocked it revealed the user's e-mail address as including the first letter of C.H.'s surname and his full forename. This evidence, together with the following evidence, overwhelmingly supported the inference that the Samsung cell phone belonged to C.H.; that the recipient of his text messages as set out on exhibit 3B was C.H.'s father, the appellant; that C.H. and the appellant both lived at or exercised control over the residence where the drugs were found; and that C.H. and the appellant were engaged in a joint enterprise involving production of marijuana and trafficking:

• C.H. and the appellant were both present in the residence at 5:45 a.m. on September 23, 2015, when the search warrant was executed, and the appellant answered the door;

• the appellant and C.H. were sitting together on a couch when officer Varey asked whether there was anything in the house that could hurt the police and the appellant answered, "no … no knives, like sharp needles, anything like that";

• the Samsung cell phone was found in the basement of the residence when the search warrant was executed;

• upon executing the search warrant, police obtained information from the other persons present about their names and dates of birth, but none gave a name that in any way corresponded with the e-mail address associated with the Samsung cell phone;

• in his initial testimony, officer Varey confirmed, albeit without elaboration, that there was "other stuff" on the copy of the Samsung cell phone provided by officer Ford that had to do with C.H., his name, and his pictures;

• in his initial testimony, officer Varey said he knew the appellant and C.H. to be father and son based on previous dealings with both;

• the contact list in the Samsung cell phone includes the name "Dad" associated with the cell phone number ending 6847;

• many of the text messages set out in exhibit 3B which were sent from the Samsung cell phone to the cell phone number ending 6847 are addressed to "Dad" (for example see message 14 in para. 22 above);

• in a text message set out in exhibit 3B sent from the Samsung cell phone to the cell phone number ending 6847 dated June 21, 2015 (Father's Day 2015), the sender wishes the recipient: "oh ya happy father's day dad";

• many of the text messages set out in exhibit 3B from cell phone number ending 6847 to the Samsung cell phone are addressed to a short form of C.H.'s forename or refer to his forename;

• many of the text messages set out in exhibit 3B gave rise to an inference that the sender and the recipient lived together (as examples, see messages 30-32 and 37-8 at para. 22 above; message 510 from "Dad": "Let dog in please"; message 511 to "Dad": "Dad wake me up for work tomorrow cool?"; message 520 to "Dad": "Hey dad I'm going to the mall with [R.] I'll be back in a Lil and can we build dat dog house or w e and oh ya happy father's day dad"; message 527 to "Dad": "Dad can [S.] and his girl sleep at the house tonight"; etc.);

• the content of some of the text messages set out in exhibit 3B contextually corresponded to items found at the residence when the search warrant was executed, for example, a dog (see messages 510 and 520 above), a pig (message 310 from Dad: "Thanks for feeding the pig"), and jars filled with marijuana (see message 14 at para. 22 above);

• expert evidence that the content of some of the coded text messages isolated on exhibit 3B indicated the sender and recipient were engaged in drug trafficking in marijuana and cocaine;

• as noted above, upon execution of the search warrant, the appellant acknowledged possession of some oxycodone pills and a bag of marijuana.

[40] In the face of this evidence, even assuming the trial judge made the errors alleged, I would not give effect to the second and third grounds of appeal.

D. DISPOSITION

[41] Based on the foregoing reasons, I would dismiss the conviction appeal. The Crown concedes that the victim fine surcharge imposed as part of the sentence should be set aside. I would allow the sentence appeal in part by setting aside the victim fine surcharge but would otherwise dismiss the sentence appeal as abandoned.

"Janet Simmons J.A."

"I agree. David Brown J.A."

DISSENTING OPINION

Tulloch J.A. (Dissenting):

I. OVERVIEW

[42] I respectfully disagree with my colleague's conclusion that the errors relating to the reopening of the Crown's case, the best evidence rule, and the trial judge's failure to hold a voir dire on the admissibility of the appellant's statement to a person in authority would not have affected the verdict. Each of these errors deprived the appellant of a fundamental procedural right that was a safeguard of his right to a fair trial. The evidence that was admitted as a result of these errors buttressed critical parts of the Crown's case. The trial judge characterized this evidence as important and this evidence played a key role in his reasoning process that led him to convict the appellant. On its own, any one of these errors would be enough to require a new trial. When these three errors are taken together, the case for a new trial is all the more compelling. Accordingly, I cannot agree with my colleague's conclusion that the curative proviso in s. 686(1)(b)(iii) of the Criminal Code can save all three errors.

[43] My reasons proceed as follows. I begin by providing a discussion of the facts that are relevant to the three errors that I have identified. I then outline those errors. First, the trial judge erred in law in reopening the Crown's case, and the curative proviso cannot save this error because the evidence elicited on reopening was central to the Crown's case. Second, the curative proviso cannot save the trial judge's legal error in admitting the text messages pursuant to the adverse party presumption in s. 31.3(b) of the Canada Evidence Act, R.S.C. 1985, c. C-5 ("CEA"). The Crown's failure to raise the provision of the CEA at trial that it now relies on is unfair to the appellant and it is not certain that the trial judge would have admitted the messages had the parties drawn his attention to this provision. Third, the curative proviso cannot save the trial judge's failure to hold a voir dire on the appellant's disclosure of his cell phone number to Officer Varey because this evidence was central to the trial judge's decision to admit the cell phone records and convict the appellant. I briefly discuss the improper police action of threatening to "rip apart" the appellant's home to prompt him to confess. Finally, I explain why the three errors, viewed cumulatively, require a new trial for the appellant.

II. THE FACTS

[44] I largely agree with my colleague's recitation of the facts. However, I must say more about certain topics that are relevant to the errors that I have found. Accordingly, I will outline the evidence presented during the Crown's case in-chief, the defence theory of the case, the Crown objection raised after the defence closing, the trial judge's ruling on the Crown objection, the manner in which the issue of the CEA electronic evidence provisions was raised, and the trial judge's reasons for judgment.

A. THE CROWN'S CASE IN-CHIEF

[45] As my colleague has explained, the Crown's case in-chief consisted of the testimony of four officers. Only two of those officers, Officer Dietrich and Officer Varey, actually attended the property to execute the search warrant. Officer Dietrich's evidence largely concerned the drugs seized. He testified that he had no direct contact with either the appellant or his son, C.H., during the search. Thus, the Crown's main witness on the events of the search itself was Officer Varey.

[46] On the evidence of Officers Dietrich and Varey, the appellant was one of seven people present on the property at the time of the search. The other persons included the appellant's son C.H., a young man, a couple and their young daughter, and a woman whom the police believed to be the appellant's common law spouse. The police arrested the appellant and C.H. Officer Varey testified that he released the other five persons present at the residence at the time of the search after they denied any knowledge or involvement of the items seized. The Crown did not call any of these persons as witnesses.

[47] Officer Varey could not identify that any of the property's six bedrooms belonged to the appellant. He easily identified the bedroom of the couple and their baby, as a crib was located in this bedroom and there was a Hydro One bill with the name of the baby's mother on it. He also identified a bedroom as belonging to C.H. because the police located C.H. in that room. Furthermore, Officer Varey identified a bedroom as belonging to the woman the police believed was the appellant's common law spouse. Officer Dietrich explained that the basis of this identification was that the woman had exited that bedroom and entered the living room when the police arrived. Officer Varey testified that he was not sure to whom two of the other bedrooms belonged. In cross-examination, he conceded that he was not sure in which bedroom the appellant was sleeping. He also testified that, aside from the oxycodone and marijuana bag that the appellant conceded to possessing, there was nothing in the disclosure that indicated that any of the other items the police found were in the appellant's possession.

[48] The police also failed to seize the cell phone in the appellant's possession at the time of the search. Officer Varey testified that he believed that all three phones that the police did seize, including the Samsung phone that the police subsequently extracted the electronic data from, belonged to C.H.

[49] Nor did the police find drugs on the appellant. As my colleague explains, the ounce of cocaine was found in a small closed safe in the basement. That safe was found on a table cluttered with old pipes, lighters, cigarette butts, and pop cans. Two marijuana plants were found in the backyard growing in flowerpots. The remaining 48 plants were found behind the house in a farm field. The appellant only acknowledged possessing the oxycodone pills in a book bag and the bag of marijuana in the living room. He confessed to possessing these pills and the marijuana bag after Officer Varey told him that the police would otherwise "rip apart" the house.

B. THE DEFENCE THEORY OF THE CASE

[50] In closing arguments, defence counsel made clear that his theory of the case was that there was insufficient evidence to link the appellant to the residence and thus to the drugs found on that property. My colleague has already detailed the hearsay objections that defence counsel raised. I would note that the hearsay objections were intended to support defence counsel's central argument on insufficiency of proof. In his ruling on the Crown objection, the trial judge himself characterized insufficiency of proof as the defence theory.

[51] I will provide additional context to the defence objection that targeted the appellant's disclosure of his cell phone number to Officer Varey. This was the first item of evidence that defence counsel targeted with a hearsay objection in his closing. He submitted that if this was inadmissible, then the Crown's case contained insufficient proof that the appellant's phone number was the same as the number listed on C.H.'s phone.

[52] Defence counsel focused the remainder of his closing on the insufficiency of proof of residence. He highlighted that that Officer Varey was not sure which bedroom belonged to the appellant and could not link any of the seized items to him. The police seized no documentary evidence that showed the appellant was a resident. The only documentary evidence relevant to residence was the Hydro One bill in the name of the mother of the baby. There were no drugs on the appellant's person and no fingerprints on the safe in the basement. The Crown failed to call C.H. or any of the other six persons found on the property at the time of the search to give evidence that the appellant was a resident. The statement by Officer Varey that the appellant was a target of the search warrant was insufficient to prove residency. Without proof of residency, the Crown could not prove that the appellant possessed the drugs found in the basement and the farmer's field.

C. THE CROWN'S OBJECTION AND THE DEFENCE RESPONSE

[53] Immediately following the defence closing, the Crown vigorously objected to the appellant's argument on the insufficiency of proof of residence and the admissibility of the appellant's disclosure of the 6847 number. The insufficiency of proof of residence was the very first issue that the Crown raised, and was closely followed by the disclosure of the 6847 number. The Crown argued that had the appellant cross-examined Officers Dietrich and Varey on the issue of residence, those officers would have provided the further proof of residence that defence counsel submitted was missing. The Crown characterized defence counsel's late-breaking admissibility objection as a breach of the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.).

[54] In response, defence counsel repeatedly submitted that he was not required to point out to the Crown the deficiencies in its case in his cross-examination of Crown witnesses. Defence counsel's first concern was that such cross-examination would alert the Crown to weaknesses in its case that it could fill by calling additional witnesses. As defence counsel submitted:

I'm not required to point out weakness that alert [the Crown] to their weakness that can be remedy by next day by a witness, a civilian witness that they're clearly lacking. So that's not the violation of Browne and Dunn. That's letting the witness give his evidence and seeing if the Crown fails to call sufficient evidence.

[55] Defence counsel also expressed concern that it was not his job to potentially elicit further incriminating evidence in cross-examination. Instead, he was entitled to hold the Crown to its onus to prove its case on residence. As he submitted:

[The officers] can't just say 'my client lived there'. The Crown has got to prove the case. Phone bills, ID. It's not up to me….It's fundamental to the elements of the various offences, the production and the [two counts of possession for the purpose of trafficking] to prove he's a resident. It's not my job to assist the Crown and say, 'could you give us more detail on why you think he lives there?'

[56] Defence counsel returned to this theme again. As he stated:

As for whether my client was a resident or lived there, I don't have to flush out the Crown's case. That's fundamental to the elements of possession. Possession, control would have to put him there…and it's not my job to do that.

D. BROWNE V. DUNN RULING & REOPENING OF CROWN'S CASE

[57] In his Browne v. Dunn ruling, the trial judge characterized both the evidence of Officer Varey on residence and the appellant's disclosure of the 6847 number as important evidence. He stated that leading evidence connecting the appellant to the residence was "important to the Crown's case" because it linked the appellant to the drugs found on the property. He concluded that proving a nexus between the appellant and the residence "was clearly a critical and necessary task faced by the Crown." Likewise, the trial judge found that the appellant's disclosure of the 6847 number was "potentially important" because it could link the appellant to the cell phone conversations with C.H. He characterized both the residency evidence and the disclosure of the 6847 number as "matters of substance, indeed potentially critical points of the Crown's case."

[58] The trial judge ultimately found the appellant breached the rule in Browne v. Dunn by raising a hearsay objection in closing argument. The trial judge ruled that defence counsel had failed to cross-examine Officer Varey on whether the appellant lived at the residence or on the 6847 number. The trial judge then referred to this court's decision in R. v. Quansah, 2015 ONCA 237, 125 O.R. (3d) 81. He interpreted the hearsay admissibility objection to Officer Varey's evidence that defence counsel raised in closing argument as a challenge to Officer Varey's evidence that engaged the rule in Browne v. Dunn.

[59] To remedy the breach, the trial judge determined that it was necessary to recall Officer Varey. He permitted the Crown to reopen its case by recalling Officer Varey. The trial Crown elicited considerable evidence from Officer Varey on recall. Officer Varey testified that the appellant had control of a large dog and had a clear knowledge of the layout of the residence. Officer Varey also gave evidence that the appellant told him that the bag containing the oxycodone also contained paperwork that related to the appellant's roofing company. Finally, Officer Varey testified that outside the residence he found numerous generators and ladders that were consistent with the appellant's roofing business.

E. LATE RAISING OF THE CEA ELECTRONIC EVIDENCE PROVISIONS ISSUE

[60] The trial judge only raised the issue of compliance with the electronic evidence provisions of the CEA after the close of the Crown's reopened case. Nearly a month after hearing the recall evidence of Officer Varey, the trial judge wrote a letter to counsel. In this letter, he raised for the first time the issue of how the admissibility of the text messages interacted with the provisions of the CEA. The trial judge invited additional submissions on both the CEA electronic evidence provisions and other admissibility-related issues.

[61] Following this letter, defence counsel promptly took the position that the Crown had failed to comply with the best evidence rule in ss. 31.2-31.3 of the CEA and that the text messages were thus inadmissible. In written submissions, defence counsel argued that the Crown could not rely on the s. 31.3(b) adverse party presumption to satisfy the best evidence rule because C.H. was not a co-accused. Two weeks later, the Crown provided its written submissions. The sole basis that the trial Crown relied on to satisfy the best evidence rule was the s. 31.3(b) adverse party presumption. The Crown reasoned that the adverse party presumption applied because C.H. was a party to the offences the appellant was charged with. The defence elected not to provide supplementary written argument.

F. REASONS FOR JUDGMENT

[62] In his reasons for judgment, the trial judge relied on both the s. 31.3(b) presumption and the appellant's disclosure of the 6847 number to Officer Varey to hold that the text messages were admissible. He adopted the Crown's argument that the s. 31.3(b) adverse party presumption applied because C.H was a party to the offence. He therefore found that the Crown had satisfied the best evidence rule. The trial judge also stated that the appellant's disclosure of the 6847 number to Officer Varey was "important evidence" that permitted the Crown to link the phone number listed as "dad" on C.H.'s phone to the appellant. He then accepted that this evidence linked the appellant to the 6847 number. Accordingly, he accepted the Crown's argument that the messages from the 6847 number to C.H. were admissible as party admissions, and admitted C.H.'s messages to the 6847 number "either on the basis of apparent common design relating to the drugs, or simply to provide context to the [appellant's] statements."

[63] The trial judge also made findings of fact on the issue of residence, including many based on Officer Varey's recall evidence. He accepted Officer Varey's original evidence that the appellant answered the door. He also found that Officer Varey was "able to detail a number of ways in which the [appellant] appeared linked to the property" in his recall evidence. The trial judge thus accepted Officer Varey's recall evidence that connected the appellant to the property in the following three ways:

1. The appellant had apparent control of a large dog located at the home;

2. The appellant appeared to know the layout of the home; and,

3. Roofing supplies, consistent with the appellant's business as a roofer, were found in a room of the home.

[64] The trial judge's findings of fact on residence and his admission of the text messages all flowed into his reasoning process that led him to convict the appellant. The trial judge stated that he concluded the Crown had proven the production charge and the two possession for the purpose of trafficking charges based on all of his findings of fact, including the findings on residence that I have outlined above. He also identified two specific grounds for his decision. First, he accepted the evidence of the police witnesses, including Officer Varey. Second, he concluded that the text messages exchanged were those of the appellant and C.H. As I have explained, the trial judge based this finding on the appellant's disclosure of the 6847 number to Officer Varey.

III. ERROR IN REOPENING OF CROWN'S CASE WARRANTS RETRIAL

[65] I do not share my colleague's view that the proviso can save the trial judge's serious error in allowing the Crown to reopen its case. I reach this conclusion for the following reasons:

a) The trial judge erred in law by permitting the Crown to reopen its case; and,

b) The curative proviso cannot save this error because the other evidence against the appellant was not overwhelming.

A. TRIAL JUDGE ERRED IN LAW BY REOPENING THE CROWN'S CASE

[66] First, the trial judge erred in law by reopening the Crown's case. The late-breaking defence objection to admissibility did not trigger the rule in Browne v. Dunn, and did not justify recalling Officer Varey to fill gaps in the Crown's case. There was no basis for the trial judge to reopen the Crown's case as his discretion to do so was exceedingly narrow and none of the exceptions that would justify reopening applied.

(1) Late-Breaking Admissibility Challenge Did Not Warrant Reopening

(a) Appropriate Remedy Was to Decline to Entertain Admissibility Challenge

[67] I agree with the Crown that the defence counsel at trial acted improperly by failing to raise admissibility objections to the Crown's evidence until his closing address. Objection to the admissibility of evidence should be taken when the evidence is tendered, not at the end of trial: R. v. Gundy, 2008 ONCA 284, 231 C.C.C. (3d) 26, at para. 20.

[68] However, the appropriate remedy here would have been for the trial judge to refuse to allow defence counsel to challenge the admissibility of the Crown's evidence. The trial judge's discretion to permit or decline a late-breaking admissibility challenge depends on whether the challenge will serve the interests of justice: Gundy, at para. 22. Here, the interests of justice did not favour permitting the admissibility challenge because, had timely objection been taken, the trial Crown could have called additional evidence: Gundy, at para. 23. Accordingly, the trial judge could have simply declined to permit the appellant's admissibility challenge. This made it unnecessary to recall Officer Varey.

(b) No Breach of the Rule in Browne v. Dunn

[69] Instead of declining to permit the appellant's admissibility challenge, the trial judge erred in law by characterizing the objection defence counsel made as a breach of the rule in Browne v. Dunn. As this court held in R. v. Henderson (1999), 44 O.R. (3d) 628 (C.A.), at p. 636, the rule in Browne v. Dunn only applies "if counsel is going to challenge the credibility of a witness by calling contradictory evidence" (emphasis added), and then fails to cross-examine that witness on the point counsel intends to impeach the witness on. However, defence counsel did not question the credibility of Officer Varey's evidence that the appellant was a target. He only stated that Officer Varey's evidence was hearsay and was insufficient to prove residency. The late-breaking submission that Officer Varey's evidence was hearsay was improper, but it is properly dealt with as an improper admissibility objection, not under the rule in Browne v. Dunn.

[70] The trial judge appears to have interpreted this court's decision in Quansah as standing for the proposition that failure to cross-examine a witness on a specific point will trigger the rule in Browne v. Dunn if the defence mounts any challenge to the witness's evidence, including an admissibility objection. This was in error. Quansah affirms this court's holding in Henderson that the rule in Browne v. Dunn only applies if a party intends to impeach a witness's evidence: Quansah, at para. 75. Likewise, in R. v. Lyttle, 2004 SCC 5, [2004] 1 S.C.R. 193, at para. 64, the Supreme Court held that the rule applies to witnesses whom the cross-examiner intends to impeach: at para. 64. Here, defence counsel did not attempt to impeach Officer Varey's evidence but simply asserted that it was both inadmissible and insufficient to establish guilt.

(2) No Basis to Reopen the Crown's Case

[71] The trial judge further erred in law by permitting the Crown to reopen its case. As I will explain, this decision violated settled and fundamentally important rules governing the reopening of the Crown's case.

(a) Restrictive Approach to Reopening

[72] The law takes a more liberal approach to reopening in civil cases and in criminal cases where the accused seeks to reopen prior to the entering of a conviction. In civil cases, as Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst explain in The Law of Evidence in Canada, 5th ed. (Toronto: LexisNexis Canada Inc., 2018), at para. 16.237, the trial judge has a relatively wide discretion to permit reopening as long as it is the reasonable and proper course to follow. Similarly, if the accused seeks to reopen the defence case prior to the entering of a conviction, the trial judge may make a discretionary decision to permit reopening: R. v. Hayward (1993), 86 C.C.C. (3d) 193 (Ont. C.A.), at p. 197. The trial judge must consider whether the evidence is relevant to a material issue, whether there would be prejudice to the Crown, and the effect of reopening on the orderly and expeditious conduct of the trial: Hayward, at pp. 197-198. As S. Casey Hill, Louis P. Strezos & David M. Tanovich write in McWilliams' Canadian Criminal Evidence, loose-leaf (Release 2019, No. 2), 5th ed. (Toronto: Thomson Reuters Canada, 2013), at para. 21:70.10, "given the importance of the right to make full answer and defence, the trial judge should be slow to dismiss the application merely because counsel exercised something less than complete due diligence in attempting to put the evidence before the court during the defence case."

[73] Not so in criminal trials where the Crown, rather than the accused, seeks to reopen. The importance of fairness to the accused causes the law to strike a different balance. As the Supreme Court explained in R. v. G. (S.G.), [1997] 2 S.C.R. 716, at para. 29, courts recognized the dangers that allowing the Crown to reopen its case posed well before the adoption of the Canadian Charter of Rights and Freedoms. In light of the Charter, "courts must be even more vigilant in protecting those interests."

[74] In a criminal trial, the prosecution has the obligation to present all the relevant evidence in its case in-chief. As this court explained in R. v. Campbell (1977), 17 O.R. (2d) 673 (C.A.), at p. 693, "The general rule with respect to the order of proof is that the prosecution must introduce all the evidence in its possession upon which it relies as probative of guilt, before closing its case." Ordinarily the prosecution may not present additional evidence after it closes its case. Furthermore, only after the prosecution closes its case must the accused decide whether to call evidence or testify.

[75] There are two exceptions to this general rule: applications to call reply evidence and applications to reopen the Crown's case. These exceptions are "'close cousins,' but not 'identical twins'": G. (S.G.), at para. 39 (citations omitted). An application to call reply evidence is appropriate where the new evidence relates to a matter that arose out of the defence case and the prosecution could not have foreseen its development: G. (S.G.), at para. 39. In contrast, an application to reopen is appropriate where the evidence is relevant to a factual issue that was material during the Crown's case in-chief and does not relate to any new issue arising from the defence evidence. In a case of reopening, the onus is on the Crown to justify why it failed to adduce the evidence during its case in-chief: R. v. M. (F.S.) (1996), 111 C.C.C. (3d) 90 (Ont. C.A.), at p. 101. As the authors of McWilliams' explain, at para. 21:60.40.20, "an application to re-open is only brought where the Crown cannot meet the test for reply evidence."

[76] If the Crown applies to reopen its case, the court's discretion to permit the reopening narrows as the trial proceeds because prejudice to the accused increases correlatively. In R. v. P. (M.B.), [1994] 1 S.C.R. 555, at p. 569, the Supreme Court held that the trial judge's discretion to permit reopening becomes more restricted as the trial progresses through the following three stages:

1. Before the Crown closes its case;

2. Immediately after the Crown closes its case but before the defence elects whether or not to call evidence; and,

3. After the defence has started to answer the case against it by disclosing whether or not it will be calling evidence.

[77] At the first stage, the trial judge has broad discretion to permit the Crown to recall a witness because prejudice to the accused is minimal. At the second stage, while the trial judge's discretion is narrower, reopening may still be granted to correct "some oversight or inadvertent omission" by the prosecution, provided that the interests of justice require this and the defence would suffer no prejudice: P. (M.B.), at pp. 569-570.

[78] In contrast, at the third stage, the trial judge's discretion is exceedingly narrow. As Lamer C.J. held in P. (M.B.), at p. 570, the trial judge may permit the Crown to reopen its case "only in the narrowest of circumstances." This narrowness "cannot be overemphasized": G. (S.G.), at para. 33. At this stage, the presence of prejudice to the accused is the "paramount consideration": G. (S.G.), at para. 36. Prejudice to the accused thus takes priority over broader societal interests in getting at the truth: P. (M.B.), at p. 570; M. (F.S.), at p. 103.

[79] As a result of this restrictive approach, the court may only permit reopening in the two narrow exceptions outlined in P. (M.B.) or in closely analogous circumstances. In P. (M.B.), at p. 573, the Supreme Court outlined only two exceptions that might justify departing from the general prohibition against the Crown reopening its case:

1. The conduct of the defence has either directly or indirectly contributed to the Crown's failure to adduce certain evidence before closing its case; and,

2. The Crown's omission or mistake was over a non-controversial issue to do with purely formal procedural or technical matters, having nothing to do with the substance or merits of a case.

In G. (S.G.), at para. 35, the Supreme Court emphasized that courts should only permit reopening beyond these two exceptions in "very exceptional cases that are closely analogous," because it is "manifestly obvious" in these cases that there is no prejudice to the accused.

(b) Rationales for Restrictive Approach to Reopening

[80] The Supreme Court has severely restricted judicial discretion to reopen the case at the third stage precisely because of the important rationales underlying the prosecution's obligation to present all the relevant evidence in its case in-chief.

[81] First, the restrictive approach to reopening protects the accused's right against self-incrimination. In P. (M.B.), Lamer C.J. stated that accused persons' right not to be compelled to assist in their own prosecution is "perhaps the single most important organizing principle in criminal law": at p. 577. It is rooted in the presumption of innocence and the power imbalance between the state and the individual: at pp. 577-578. The right reflects the principle that the accused is not obligated to assist the prosecution and that the state, with its greater resources, has the onus to investigate and prove its own case: at pp. 578-579.

[82] This concern about the power imbalance between the Crown and the accused is particularly important. Accused persons are often disadvantaged or marginalized: R. v. Boudreault, 2018 SCC 58, 429 D.L.R. (4th) 583, at para. 3. If convicted, they face "grave social and personal consequences," including not only the loss of liberty, but also stigma, ostracism, and social, psychological, and economic harms: R. v. Oakes, [1986] 1 S.C.R. 103, at pp. 119-120. To avoid these consequences, the accused must confront the great resources of the state. Given this power imbalance, it is only appropriate to lock the Crown into the case it presented in-chief, rather than permitting the Crown to modify its case in response to the case the defence reveals: P. (M.B.), at p. 580.

[83] Second, the restrictive approach to reopening protects the accused's right to make full answer and defence and right to a fair trial: G. (S.G.), at para. 38. The specific unfairness that the rule protects against is the unfair advantage that the Crown gains from splitting its case. Case-splitting permits the Crown to change its case or fill gaps in its case: G. (S.G.), at paras. 39, 41.

[84] Such case-splitting is unfair first because it prevents the accused from making an informed decision about whether to call evidence or testify. The law recognizes that the accused's right to decide whether or not to testify is fundamentally important, such that an accused will normally be entitled to a retrial if the accused's counsel did not permit the accused to testify when the accused wanted to do so: R. v. Cubillan, 2018 ONCA 811, 143 O.R. (3d) 376, at para. 14. Reopening undermines the accused's ability to make a meaningful choice. As the Supreme Court held in R. v. Biddle, [1995] 1 S.C.R. 761, at para. 13, the accused is entitled to know the Crown's full case at the close of the Crown's case in-chief so that the accused can know the case to meet. This permits the accused to make the decision to remain silent or testify "in the full awareness of the Crown's case": Biddle, at para. 12, quoting John v. The Queen, [1985] 2 S.C.R. 476, at pp. 480-481. As Lederman, Bryant & Fuerst explain in The Law of Evidence in Canada, at para. 16.235, the test for reopening is so restrictive because of "the concern that the accused will have responded to the Crown's case without knowing the full case to be met."

[85] In addition, such case-splitting undermines the importance of the Crown's duty of disclosure to the accused. As the Supreme Court recognized in G. (S.G.), at para. 46, the defence prepares and presents its case on the basis of the Crown's disclosure. Accordingly, when the defence discloses whether or not it will call evidence, it is entitled to assume that the Crown's case is complete. The defence can reasonably assume that the Crown "would not close its case without adducing all the evidence it considered necessary to secure a conviction": G. (S.G.), at para. 46. As Martin J.A. wrote in Campbell, at p. 693, restricting the Crown from calling new evidence following the close of its case in-chief helps prevent the accused from being taken by surprise and permits the accused to properly investigate the evidence the Crown has called. In this regard, I would adopt the following statement by L'Heureux-Dubé J. in R. v. Rose, [1998] 3 S.C.R. 262, at para. 61:

There is a general principle that the Crown should set out its case, make disclosure, and put forward all its evidence before the accused must defend against that evidence. The right to prior knowledge of what is contained in the Crown's evidence and theory of the case is fundamental because it is the Crown's burden to present evidence sufficient to show guilt beyond a reasonable doubt. Without knowing the Crown's basic case, the defence would have to put forward its case in a vacuum, and could not even begin to answer it.

[86] Furthermore, reopening departs from the normal rules of the adversarial process. Calling reply evidence is more consistent with the rules of the adversarial process because the matter addressed arises out of the defence case in a manner that the Crown could not have foreseen: G. (S.G.), at para. 39. This tends to alleviate the prejudice to the accused. There is no concern about the accused putting forward a defence without knowing the full case to be met as the reply evidence only became relevant as a result of the defence evidence: G. (S.G.), at para. 40. In contrast, evidence called on reopening was relevant to a factual issue that was material during the Crown's case in-chief, not one that arose solely out of the defence evidence. As Doherty J.A. wrote in M. (F.S.), at p. 101, a prosecutor who applies to reopen the Crown's case is "deviating from the normal rules of the adversarial process" and must justify that deviation. Similarly, as the authors of McWilliams state in relation to an application to reopen, at para. 21:60.40.20,

By definition, the Crown is seeking to call evidence, the clear relevance of which would have been apparent during its case in-chief. It follows that allowing the Crown to lead such evidence at the third stage will usually create the prejudices that the rule against case splitting is designed to prevent.

[87] The Supreme Court has also recognized that the defence faces serious risks in responding to the reopening of the Crown's case. First, reopening may require the defence to also reopen and adduce evidence inconsistent with the defence's original position, which prejudices the defence. Second, the defence may not be able at such a late stage in the trial to address the Crown's enhanced case. As the court concluded, recalling Crown witnesses and reopening the defence case "can never completely cure the resulting harm to the defence" from permitting the Crown to reopen: G. (S.G.), at para. 44.

[88] Moreover, it is inappropriate for courts to speculate that the defence case would not have changed in response to reopening. As the Supreme Court held in G. (S.G.), at para. 47, this would require the court to speculate about the evidence the defence would have called and the approach the defence would have taken to cross-examining Crown witnesses. As these questions are impossible to determine, courts should not consider whether the defence would have been different when considering a Crown request to reopen.

(c) Application

[89] In this case, the trial judge correctly characterized the recall of Officer Varey as a reopening of the Crown's case rather than reply evidence. The evidence Officer Varey gave when recalled concerning the appellant's connection to the residence did not relate to a matter that arose out of the defence evidence. Indeed, the defence called no evidence. Instead, Officer Varey's recall evidence included evidence that tended to establish the accused's connection to the residence, an element that was relevant to proving the offences for which the accused was charged: see R. v. K.T., 2013 ONCA 257, 295 C.C.C. (3d) 283, at para. 65.

[90] The trial judge's discretion to permit the Crown to reopen its case was exceedingly narrow in this case. The Crown sought to reopen at stage three of the trial, after the Crown had closed its case and after the defence had elected not to call evidence. In fact, the Crown reopened at the latest stage of all, namely after defence counsel had made his closing submissions. As a result, in determining whether to exercise his discretion, the trial judge had to prioritize the prejudice to the appellant from reopening over the societal interest in getting at the truth. He could only exercise his discretion to permit reopening if there would be no prejudice to the appellant because one of the P. (M.B.) exceptions or a closely analogous situation prevailed.

[91] Because neither the P. (M.B.) exceptions nor a closely analogous situation applied, there was no basis for the trial judge to exercise his discretion to permit reopening. Neither of the two P. (M.B.) exceptions apply to the evidence about the appellant's connection with the residence that the Crown adduced in its reopened case. Residence was key to the Crown's case. The Crown's failure to elicit further evidence from Officer Varey during its case in-chief is thus not a procedural or technical matter that had no bearing on the merits. Moreover, all that the Crown faults defence counsel for in regard to the Crown's failure to adduce evidence about who lived at the house is that defence counsel's cross-examination of Officer Varey suggested that the appellant was not disputing who lived at the house. Yet, as P. (M.B.) states, the defence has no obligation to assist the prosecution: p. 578. Likewise, while the fact that Crown evidence is uncontradicted can be a relevant factor for the trier of fact, the defence remains entitled to argue that even uncontradicted Crown evidence does not prove the offence beyond a reasonable doubt: R. v. Noble, [1997] 1 S.C.R. 874, at paras. 79, 82, 97. Accordingly, it does not follow that the defence's passive conduct contributed to the Crown's failure to adduce this evidence.

[92] In any case, defence counsel's cross-examination of Officer Varey would have made clear to the Crown that the defence was intending to argue that there was insufficient proof on the issue of residency. Admittedly, as the trial judge noted, defence counsel never cross-examined Officer Varey on his statement that the appellant lived at the property. Yet defence counsel did cross-examine Officer Varey on Officer Varey's failure to link the appellant to any particular bedroom or to place any of the various items found in the house in the appellant's possession. As defence counsel stated in one of his questions, "there's nothing in this disclosure, as you say that targets which bedroom is [the appellant's] and nothing to indicate that any of those items I just listed were in [the appellant's] possession." In these circumstances, it is difficult to see how it would have been lost on the Crown that defence counsel intended to contest the sufficiency of proof on the issue of residence.

[93] Moreover, this is not an appropriate case to recognize a new exception because the reopening clearly prejudiced the appellant. The appellant was unable to make an informed decision about whether to call evidence or testify because the Crown's case at the close of its case in-chief was weaker than it later became when supplemented by Officer Varey's recall evidence. The appellant was entitled to attack the sufficiency of that evidence on the assumption that the Crown adduced all the evidence it considered necessary to secure a conviction in its case in-chief. When the trial judge permitted Officer Varey's recall, the appellant was prejudiced. Defence counsel's closing submissions on the lack of evidence on residency drew the trial Crown's attention to an important gap in the Crown's case. After learning of that gap, the trial Crown then filled the gap through the recall evidence of Officer Varey. The Crown thus effectively conscripted the appellant into assisting in his own prosecution.

[94] Ultimately, this is a case where the appellant challenged the sufficiency of proof on the evidence connecting him to the residence, as he was entitled to. There was thus no basis for the trial judge to permit the Crown to reopen its case.

B. Proviso Cannot Save Reopening Error

[95] For the curative proviso in s. 686(1)(b)(iii) of the Criminal Code to apply, the Crown must satisfy the court "that the verdict would necessarily have been the same if [the] error had not occurred": R. v. Marakah, 2017 SCC 59, [2017] 2 S.C.R. 608, at para. 74, quoting R. v. Wildman, [1984] 2 S.C.R. 311, at p. 328, quoting Colpitts v. The Queen, [1965] S.C.R. 739, at p. 744. As the Supreme Court explained in R. v. Sarrazin, 2011 SCC 54, [2011] 3 S.C.R. 505, at para. 25, the application of the proviso is restricted to the following two types of cases:

1. The evidence against the accused is overwhelming; and,

2. It can safely be said that the legal error was harmless because it could not have had an impact on the verdict.

(1) The Error Was Not Harmless

[96] The harmless error category has no application to the reopening issue, and my colleague does not argue that it does. As I have explained, in his reasons for judgment, the trial judge noted that Officer Varey was able to outline a number of ways in which the appellant appeared linked to the property when he was recalled. The trial judge then made findings of fact about the appellant's connection to the home based on this recall evidence. He found that the appellant had apparent control of a large dog and appeared to know the layout of the home, and that roofing supplies consistent with the appellant's trade were found in the home. In his reasons, the trial judge stated that he based each conviction on his findings of fact, which included these findings related to the evidence.

[97] Accordingly, the legal error was not harmless because the Crown cannot demonstrate that it did not impact the verdict. It cannot be said that the evidence Officer Varey gave when recalled was not significant to the determination of guilt or innocence or related to issues not central to this determination: R. v. Van, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 35; R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 30. In fact, as the trial judge stated in his Browne v. Dunn ruling, the evidence connecting the appellant with the residence was "important to the Crown's case" in linking the appellant to the drugs found there, and proving that connection "was clearly a critical and necessary task" the Crown faced.

(2) The Evidence Against the Appellant Was Not Overwhelming

[98] Furthermore, I disagree with my colleague that the evidence against the appellant was so strong as to justify applying the overwhelming evidence branch of the proviso.

[99] Courts should be very reluctant to apply the overwhelming evidence branch of the proviso in cases of reopening. As I have explained, the rules that generally prohibit reply and reopening form "one of the fundamental precepts of our criminal process" and reflect the principle that the accused must be able to elect whether or not to call evidence or testify "in the full awareness of the Crown's complete case": Biddle, at para. 12, quoting John, at pp. 480-481. Moreover, as the Supreme Court has stated in the context of applying the proviso to breaches of the rules governing reply evidence, "The reviewing tribunal cannot, with anything approaching reality, retry the case to assess the worth of the residual evidence after the improperly adduced evidence has been extracted from the record": John, at pp. 481-482; see also Biddle, at para. 21. This court has previously heeded that caution and directed new trials in cases where the rules concerning reply evidence and reopening were violated, even where there was considerable evidence against the accused: M. (F.S), at pp. 107-108; R. v. Diu (2000), 49 O.R. (3d) 40 (C.A.), at paras. 192-193.

[100] I would heed these expressions of caution in this case for two reasons. First, the deficits in the Crown's case on the issue of residence and the importance placed by both the parties and the trial judge on Officer Varey's evidence on residence belie the suggestion that the other evidence was overwhelming. Second, there is a real possibility that the appellant may have conducted his defence differently had the Crown called the additional evidence on residence during its case in-chief. As a result, I cannot with any degree of confidence retry the case and assess the worth of the remainder of the Crown's case after the improperly adduced reopening evidence has been set aside.

[101] First, as the trial judge noted and both trial counsel understood, proving a connection to the residence was a critical part of the Crown's case. It is clear that the appellant's trial counsel saw this as a critical issue given his closing argument that the evidence the Crown tendered in its case on residence was insufficient. The trial Crown's vigorous objection and successful eliciting of considerable evidence from Officer Varey on recall confirms that the Crown saw the issue of the sufficiency of the evidence linking the accused to the residence as equally significant. Indeed, proving the accused's connection to a residence is often central to proving possession and production offences: Robert J. Frater, Bruce A. Macfarlane & Croft Michaelson, Drug Offences in Canada, 4th ed. (Release 2019-2, April 2019), (Toronto: Thomson Reuters, 2015), at paras. 4:100.60, 7:80.60. Accordingly, the fact that there was evidence showing that the 6847 number was the appellant's, that the young person C.H. arrested at the residence was the appellant's son, and the evidence linking both of them to drug trafficking does not negate the significance of the frailties of the Crown case on residence.

[102] Unlike this court, the trial judge and both trial counsel had a front row seat. They heard witnesses' testimony and experienced the Crown's case-in-chief and the trial as it unfolded: see Van, at para. 36. It follows that when determining whether to apply the proviso, it is appropriate to consider the importance that both trial counsel and the trial judge placed on the evidence that was wrongly admitted. The fact that both the trial judge and trial counsel treated the issue of residence, the deficiencies in the Crown's initial case on residence, and the recall evidence of Officer Varey as important commands caution when this court is asked to apply the overwhelming evidence branch of the proviso.

[103] I would thus decline to retry the case. I cannot conclude that the remaining evidence on residence constituted an overwhelming case against the appellant after extracting the improperly adduced recall evidence. The extent of the Crown's evidence concerning residence prior to reopening was that the appellant was a target of the warrant, Officer Varey thought the appellant lived at the residence, the appellant answered the door to the residence at 5:45 a.m., and the appellant had personal or family relationships with the other persons found at the residence.

[104] The Crown's case on residence prior to reopening was thus rather thin. As the appellant's trial counsel pointed out, the trial Crown did not adduce any documentary evidence such as bills, mail, identification documents, or a lease to prove that the appellant lived in the residence. The only hydro bill that Officer Varey mentioned in his evidence was not in the name of the appellant. Nor did the trial Crown call any of the other persons found in the residence to give evidence that the appellant lived there. I would note that the trial Crown was aware of the deficiencies in the Crown's case on reopening. The trial Crown's submission that the officers would have provided additional information linking the appellant to the residence had they been cross-examined on the basis for their belief that the appellant lived there makes this clear.

[105] Moreover, even the evidence that the Crown did adduce in its case in-chief prior to reopening did not uniformly tend to show that the appellant lived in the residence. In his evidence-in-chief, Officer Varey mentioned that the appellant had another residence in addition to the property searched and that C.H. had lived at this other residence in the past. Officer Varey also admitted that he did not identify which bedroom in the target residence belonged to the appellant and in fact had no idea in which room the appellant was sleeping. It would have been open to a trier of fact to find this absence of evidence concerning, especially since the officers were able to identify the bedrooms of five of the other six persons found on the property at the time of the search.

[106] Furthermore, my conclusion on this issue would remain the same even if the text messages were admissible. I agree with my colleagues that the messages did support the inference that the sender and recipient lived together and engaged in drug trafficking. However, the messages never referenced the address of the target residence. As I have noted, there was evidence that the appellant had another residence and that C.H. had been living with him there in the past. My colleague points out that the content of some of the messages corresponded to items found at the residence when the search warrant was executed, such as the references to a dog and a pig. Yet in a rural area where dogs and pigs were not uncommon, it would have been open to the trial judge to find that such references were not particularly probative on the issue of residence. Accordingly, the text messages, even coupled with the other evidence from the Crown's case prior to reopening, did not command the inference that the appellant lived in the residence the police searched, as opposed to some other residence.

[107] I also do not agree that this was solely a "text message case" and that Officer Varey's evidence concerning residence was unimportant. The text messages were important evidence. However, they were only one of the two components in the Crown's case. The other component was Officer Varey's evidence concerning the execution of the search warrant that the Crown used to link the appellant to the residence. That component was also important to the Crown's case. The strength of the Crown's objection to defence counsel's challenge to the admissibility of Officer Varey's evidence linking the appellant to the residence makes that clear. The trial judge stated that he saw both Officer Varey's evidence on residence and the text messages as important evidence. He ultimately relied on both types of evidence to convict the appellant.

[108] Even if the evidence in the text messages was overwhelming, I would still order a new trial because of the real possibility that the appellant may have conducted his defence differently had the Crown adduced Officer Varey's recall evidence as part of its case in-chief. The appellant made the decision not to call evidence or testify in response to the case the Crown presented in-chief, a case that was thin on the issue of residence. If that case had been stronger, the appellant may well have conducted his cross-examination of Officer Varey differently, and he may have chosen to call evidence or testify. As G. (S.G.) teaches, at para. 47, it is improper for this court to speculate that the appellant's defence would not have changed. The fact that the appellant did not seek to reopen his defence in response to Officer Varey's recall evidence does not negate this principle because, as G. (S.G.) confirms, at para. 44, reopening the defence case "can never completely cure the resulting harm to the defence."

IV. TEXT MESSAGE ADMISSIBILITY ERROR WARRANTS RETRIAL

[109] In any case, the trial judge admitted the text messages on an erroneous basis. He applied a presumption in the CEA that the Crown now concedes was erroneous. The properly operating presumption in s. 31.3(a) of the CEA that the Crown now relies on was never advanced at trial. In these circumstances, it would be unfair to deny the appellant a chance to test the admissibility of the text messages at trial. I am also convinced that there is a reasonable possibility that the trial judge would not have admitted the messages had he considered the properly operating presumption. I reach the following two conclusions:

1. I agree with my colleague and the Crown that the trial judge erred in law by admitting the text messages pursuant to the adverse party presumption in s. 31.3(b) of the CEA; and

2. The proviso cannot save this error because it would be unfair to deny the appellant an opportunity to challenge the properly operating presumption in s. 31.3(a) of the CEA and there is a realistic possibility that this presumption would not justify admission.

A. TRIAL JUDGE ERRED BY RELYING ON THE ADVERSE PARTY PRESUMPTION

[110] After the close of the Crown's reopened case, the trial judge invited submissions from the parties on R. v. Avanes, 2015 ONCJ 606, 25 C.R. (7th) 26, a case concerning the CEA provisions on electronic evidence. This was the first point at which counsel considered these provisions. The trial judge was right to direct counsel's attention to the electronic evidence regime contained in ss. 31.1 through 31.8 of the CEA. Compliance with the authentication and best evidence provisions in ss. 31.1 - 31.2 of the CEA is mandatory: CEA, s. 31.7; R. v. Ball, 2019 BCCA 32, 371 C.C.C. (3d) 381, at para. 68.

[111] At issue here are the best evidence provisions of the CEA electronic evidence regime. My colleague has helpfully outlined these provisions. In this case, as she explains, the Crown relies on s. 31.2(1)(a), which provides that the best evidence rule is satisfied "on proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stored": CEA, s. 31.2(1)(a). Section 31.3 of the CEA then outlines three presumptions by which, "in the absence of evidence to the contrary," integrity under s. 31.2(1)(a) of the CEA "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.

[112] The only presumption that the Crown relied on at trial was the s. 31.3(b) adverse party presumption. The Crown argued that this presumption applied because, even though C.H. was not a party to the proceedings, he was a party to the offence. The defence argued it did not apply because C.H. was not a co-accused. The trial judge accepted the Crown's argument and found that the Crown had proved the integrity of the electronic data extracted from the Samsung cell phone pursuant to s. 31.3(b). He did not consider any other bases for proving the text messages' integrity.

[113] It is common ground between the parties that the trial judge erred in holding that the best evidence provision was satisfied on the basis of the adverse party presumption of integrity in s. 31.3(b) of the CEA. The rationale for the adverse party presumption is that the opposing party, as the source of the information, is best-situated to know the capacities of its electronic document system and will be best able to adduce evidence to rebut the presumption: Gerald Chan & Susan Magotiaux, Digital Evidence: A Practitioner's Handbook (Toronto: Emond, 2018), at p. 172. Here, the cell phone did not belong to the appellant and the police, not him, had access to its contents following its seizure. Accordingly, the adverse party presumption does not apply.

B. PROVISO CANNOT SAVE ADMISSIBILITY ERROR

[114] The Crown argues that the curative proviso should save this error because the presumption that the device was operating properly outlined in s. 31.3(a) of the CEA does apply. The Crown submits that the evidence demonstrates that at all material times the cell phone was either operating properly or operating in a manner that did not affect the integrity of the text messages.

[115] I would not accept this argument. Deciding this issue on appeal when the Crown never raised the application of s. 31.3(a) at trial would be unfair to the appellant and deny him the ability to challenge the admissibility of critical evidence. Even if it were appropriate to decide this issue on appeal, I am convinced that there is a reasonable possibility that the trial judge would have concluded that the s. 31.3(a) presumption did not apply if the parties had directed his attention to it.

(1) Inappropriate to Consider on Appeal

[116] First, I would not accept this argument because the Crown's decision to advance the s. 31.3(a) presumption for the first time on appeal denied the appellant the opportunity to test the admissibility of the evidence under this presumption at trial. The trial Crown made no reference to s. 31.3(a) in her submissions to the trial judge and only relied on the s. 31.3(b) adverse party presumption. Accordingly, the defence had neither the need nor the occasion to make submissions on the application of s. 31.3(a) at trial.

[117] I agree with my colleague that the Crown may sometimes be entitled to take a different position as a respondent on appeal than it did at trial if it wishes to argue that the error relied on by the accused is harmless: R. v. Suarez-Noa, 2017 ONCA 627, 139 O.R. (3d) 508, at para. 29, leave to appeal refused, [2018] S.C.C.A. No. 142.

[118] However, it is appropriate for appellate courts to be cautious when asked by the Crown on appeal to find that evidence would have been clearly admissible on a certain basis the Crown never explored that basis at trial. To draw the conclusion that the evidence would necessarily have been admissible in all but clear cases would undermine fairness to the accused and deny the accused a chance to test the evidence's admissibility: R. v. Berhe, 2012 ONCA 716, 113 O.R. (3d) 137, at para. 27. This fairness concern is especially salient when dealing with novel legal issues such as the admissibility of electronic documents. This court has not previously considered the best evidence rule for the admission of electronic documents under the CEA in any detail. Indeed, in this case, both counsel were unfamiliar with the CEA requirements until the trial judge raised this issue.

[119] I cannot share my colleague's conclusion, at para. 30 of her reasons, that there is no unfairness to the appellant because he was on notice of the opportunity to challenge the admissibility of the text messages through adducing evidence at the trial. In a criminal trial, as I have explained, the Crown must first reveal its case in-chief. Only then is the defence required to choose whether and how to respond to that case in-chief. In this case, it is clear that the onus was on the Crown to show that the requirements of admissibility in the CEA were met: Ball, at para. 70. It was for the defence to respond to the case for admissibility that the Crown presented at trial, not to somehow foresee and pre-emptively respond to the case for admissibility the Crown now presents on appeal. If the defence believed that the Crown's case for admissibility was rooted in a fatal legal error, then it was entitled to simply identify that legal error rather than also contest an additional issue that would only arise if the defence was wrong about that legal error.

[120] Here, the defence cannot be faulted for responding to the case for admissibility the Crown presented at trial in the way it did. As I have mentioned previously, the trial judge only raised the CEA best evidence provisions with the parties after the Crown closed its reopened case and after the defence had elected not to call evidence. The defence argued that the only presumption the trial Crown put forward and the trial judge ultimately relied on did not apply as a matter of law. The Crown now concedes that the defence was correct in so arguing. In these circumstances, it is unfair to fault the defence for not calling evidence to the contrary. The defence cannot be faulted for mounting what should have been a successful response to the only best evidence presumption that the Crown presented at trial.

(2) Not Clear that Text Message Would Be Admitted under s. 31.3(b)

[121] Together with these fairness concerns, I would note that there were significant deficiencies in the evidence in the Crown's case relevant to the s. 31.3(a) presumption. Accordingly, there is a reasonable possibility that the trial judge might have not have admitted the text messages pursuant to s. 31.3(a).

[122] Clearly the overwhelming evidence branch of the proviso has no application, and my colleague does not argue that it does. As the trial judge recognized, without the text messages the Crown's case would be very weak.

[123] The Crown is thus left to rely on the harmless error branch of the proviso. This requires it to show that "the verdict would necessarily have been the same if [the] error had not occurred": Marakah, at para. 74 (citations omitted). I am not convinced that the Crown can meet this high bar.

[124] I begin with the purpose of the best evidence rule in the CEA. The objective of the best evidence rule is to assist with the verification of the integrity of an electronic document, namely to ensure that its contents accurately reflect the information originally inputted into the computer system by its author: R. v. Hirsch, 2017 SKCA 14, 353 C.C.C. (3d) 230, at para. 23; Ball, at para. 73.

[125] I accept the Crown's submission that Canadian courts have taken a functional approach to the properly operating presumption in s. 31.3(a): Ball, at para. 75. The s. 31.3(a) presumption can be satisfied on the basis of lay evidence: Chan & Magotiaux, at p. 172. Moreover, it may be satisfied by either direct or circumstantial evidence: Ball, at para. 73. As Paciocco J.A. has written extrajudicially, the bar is similar to the prima facie case standard: David M. Paciocco, "Proof and Progress: Coping with the Law of Evidence in a Technological Age," (2013) 11 Can. J.L. & Tech. 181, at p. 204. I thus agree with my colleague's conclusion, at para. 25 of her reasons, that the threshold in s. 31.3(a) is lower than the threshold in s. 31.3(b). I also agree with my colleague's holding, at para. 28 of her reasons, that there is no requirement that in every case the Crown call a lay witness to verify the content of the text messages or provide evidence of testing the text messaging system.

[126] Where I part ways with my colleague is her conclusion that the trial judge would have inevitably concluded that the s. 31.3(a) presumption was met if he had considered it. In my view, my colleague's conclusion overlooks the deficiencies in the evidence in the Crown's case that is relevant to this presumption. It also overlooks the requirement in the text of s. 31.3(a) that the evidence be capable of supporting a finding that the system was operating properly at "all material times." A review of both the jurisprudence and the scholarship on the s. 31.3(a) presumption indicates that these deficiencies were potentially significant. Had the trial judge considered the s. 31.3(a) presumption, there is a reasonable possibility that he may have found that the Crown had not met the threshold.

[127] One important way of satisfying the s. 31.3(a) presumption is for a lay witness to provide evidence that the system the witness used to send and receive the messages was properly operating such that the messages displayed corresponded to what the lay witness remembers sending and receiving. For instance, in R. v. Donaldson, 2016 CarswellOnt 21760 (Ct. J.), Paciocco J. (as he then was) held that, for the s. 31.3(a) presumption to apply, the evidence should tend to show not only the nature of the electronic document system used, but also evidence that the system has been historically successfully used: at para. 9. Similarly, Paciocco J.A. has written extrajudicially that if a witness provides evidence that a text message was received on a phone to show that the system was functioning properly, this will usually satisfy the s. 31(3)(a) presumption: Paciocco, "Proof and Progress," at p. 205.

[128] Such lay evidence that the messaging system was successfully used and that the messages displayed corresponded to what the witness recalled sending or receiving has formed the basis for satisfying the s. 31.3(a) presumption in recent cases. In R. v. Soh, 2014 NBQB 20, 416 N.B.R. (2d) 328, the Crown sought to admit text messages the complainant and accused had exchanged. The court found these messages satisfied the best evidence rule because the complainant both explained how Facebook worked generally and then gave evidence that Facebook was working properly when she exchanged the messages in question with the accused: paras. 28-30. Likewise, in R. v. K.M., 2016 NWTSC 36, the Crown sought to admit printouts of time-stamped Facebook messages exchanged between the accused and a Crown witness. The Crown witness gave evidence that the computer he was using functioned properly, that he exchanged the messages in question with the accused, and that the time stamps corresponded to the actual time in the community in question: paras. 15-18. The court found that the messages satisfied the s. 31.3(a) presumption based on the witness's testimony that the computer worked properly at the time he used it to send the messages: para. 40.

[129] In contrast, in this case there is no comparable evidence to support a finding that the phone was properly operating at the time the messages were sent. C.H. was compellable, but the Crown did not call him to give evidence that he had successfully sent and received the text messages. While the Crown was not required as a matter of law to call C.H. in order to satisfy the s. 31.3(a) presumption, the Crown's failure to do so would have been a relevant consideration for the trial judge. At para. 23 of her reasons, my colleague points to Officer Varey's statement that the cell phone was "working" when he seized it. However, the Crown did not elicit further evidence from him about what this meant. Officer Varey thus did not give evidence that the phone was able to successfully send and receive messages that displayed what the user inputted at the time of seizure, much less that the phone was able to do so at the time when the messages the Crown sought to rely on were sent and received. This is a significant difference from Soh and M.K., especially given the statutory language in s. 31.3(a) that the evidence must support a finding that the computer system was operating properly "at all material times."

[130] In fact, this case has features similar to the British Columbia Court of Appeal's decision in Ball, where the court decided that there was a "realistic possibility" that the trial judge might have excluded Facebook messages had the trial judge considered the s. 31(3)(a) presumption. Neither the parties nor the trial judge in Ball had considered the requirements of the CEA at the investigative or trial stages: para. 82. In that case, the Crown sought to rely on the accuracy of the time stamps, but the Crown witness who had exchanged the messages with the accused did not provide evidence that the time stamps accurately reflected the local time. On this basis, the court distinguished the case from cases such as K.M. where messages were admitted: paras. 84-85. Similarly, in this case, the trial judge and the parties did not turn their minds to the requirements of the CEA until all the evidence was in. They then considered a provision that is now conceded does not apply and never turned their minds to the requirements of s. 31.3(a). Likewise, Officer Varey did not provide evidence that the extracted messages matched what had originally been inputted into the phone, and the Crown did not call C.H. or any other witness to provide such evidence.

[131] The Crown and my colleague point to the considerable evidence tending to show that the data extracted was an exact copy of the data found on the cell phone at the time of seizure, along with the evidence that the messages were exchanged with a phone number associated with the appellant. I agree with my colleague that this evidence tends to show that the messages were exchanged between the appellant and C.H. and that whatever information contained on the cell phone at the time of its seizure was accurately extracted. However, this evidence does not assist the court in determining whether the data on the cell phone accurately reflected the information originally inputted into the cell phone by the appellant and C.H., or whether the cell phone was properly operating at the time when the messages were sent and received. It thus is not fully responsive to the purpose of the best evidence rule, namely to ensure that the present contents of the system accurately reflect the information originally inputted into it.

[132] The Crown and my colleague also stress that the evidence that the text messages are stored in a customary format supports the inference that the phone was working properly. I am not convinced that the trial judge would have necessarily placed significant weight on this factor. In Ball, the Facebook messages were also time-stamped and arranged in chronological order, but the court emphasized that there was no evidence confirming that the time stamps were accurate or reliable: paras. 84-85. This factor contributed to the court's conclusion that there was a realistic possibility that the trial judge may have excluded the use of the Facebook messages if the trial judge had considered the CEA provisions: para. 87.

[133] The Crown further submits that this court should simply take judicial notice that cell phones can send and receive text messages and that the content of a text message on a cell phone is not altered by the passage of time. I do not understand my colleague to endorse this argument but I will nonetheless address it.

[134] I am not convinced that a trial judge would necessarily have admitted the messages on the basis of judicial notice. As noted previously, Paciocco J.A. has suggested that lay evidence should form the basis to satisfy the presumption in both his academic writing and a decision when he was a trial judge. While such lay evidence could be coupled with judicial notice that a cell phone can generally send and receive texts, I do not read Paciocco J.A. to suggest that judicial notice is a sufficient basis: Paciocco, "Proof and Progress," at p. 205; Donaldson, at para. 9.

[135] Nor do I accept the Crown's submission, adopted by my colleague, that the nature of the conversation contained in the text messages compels a finding that the s. 31.3(a) presumption is met. The Crown submits that the text messages show the "back and forth" dialogue characteristic of ordinary conversation, relying on R. v. Tello, 2018 ONSC 356. However, in Tello, the court did not appear to consider the requirements of the CEA. Moreover, in that case, the police officers who were involved in sending and receiving the text messages to the accused that the Crown sought to admit testified that the photographs of these text messages accurately displayed the text message they sent or received. The court admitted the photographs of the text messages primarily on the basis of this testimony: para. 12. I would also note that in Ball, the messages also appear to have had the characteristics of back and forth dialogue, but the British Columbia Court of Appeal still held that the requirements of s. 31.3(a) were not met: see para. 10.

[136] The Crown's burden to establish that a retrial is unnecessary is high: Sarrazin, at para. 28. Yet the Crown's case on the s. 31(3)(a) presumption lacks evidence found in cases where that presumption was satisfied, namely evidence from a witness that the messages corresponded to what the witness recalled sending or receiving. Moreover, the fact that the trial judge only raised the CEA electronic evidence provisions after all the evidence was in, combined with the Crown's failure to raise the s. 31(3)(a) presumption at trial, deprived the appellant of the ability to test the admissibility of the evidence under this presumption. It is not clear to me on this record that all the prerequisites of admissibility under s. 31.3(a) were established to the necessary standard. In these circumstances, I cannot share my colleague's opinion that the trial judge's error in relying on the s. 31.3(b) presumption was a minor error that could not have affected the outcome.

[137] In the end, I would echo the caution the British Columbia Court of Appeal expressed in Ball, at para. 88. Like Mr. Ball, the appellant faced serious charges and was "entitled to be tried on only carefully scrutinized and plainly admissible evidence, particularly where that evidence was critically important," as it was here. To hold that s. 31.3(a) would plainly be met and deny the appellant a new trial despite the failure of the Crown to raise s. 31.3(a) below and the deficiencies in the evidence relevant to this issue would deprive the appellant of an "important procedural protection," thus compromising the fairness of these proceedings.

V. FAILURE TO HOLD VOIR DIRE WARRANTS RETRIAL

[138] Finally, I would hold that the trial judge erred in law by failing to hold a voir dire to determine the admissibility of the appellant's disclosure of his cell phone number to Officer Varey, and that this error warrants a new trial. I reach this conclusion for the following two reasons:

1. The trial judge erred in law in failing to hold a voir dire in relation to the disclosure of the 6847 number to Officer Varey because the appellant never expressly waived the voir dire;

2. The proviso cannot save this error because the disclosure of the 6847 number was important evidence that played a central role in the trial judge's reasoning process in admitting the text messages and convicting the appellant.

A. TRIAL JUDGE ERRED IN FAILING TO HOLD A VOIR DIRE

[139] My colleague proceeds on the basis that the trial judge erred in failing to hold a voluntariness voir dire concerning the cell phone number. I would go further and find definitively that the trial judge erred in law in failing to hold such a voir dire.

[140] As my colleague states, there is a high onus on trial judges in relation to voluntariness. The general rule is that the trial judge must always hold a voir dire to determine the voluntariness of a statement that an accused person makes out-of-court to a person in authority: Erven v. The Queen, [1979] 1 S.C.R. 926, at p. 943. This rule applies notwithstanding the absence of a request for a voir dire from defence counsel: R. v. Hodgson, [1998] 2 S.C.R. 449, at para. 44. Defence counsel may waive the voir dire. However, for the waiver to be valid, defence counsel must expressly state that the defence does not object to the statement's admission or state that voluntariness is not in issue: Park v. R., [1981] 2 S.C.R. 64, at pp. 73-74. As the Supreme Court stated in Park, at p. 74, "[s]ilence or mere lack of objection does not constitute a lawful waiver."

[141] This was a case where a voir dire was clearly required absent waiver. After all, the appellant made the statement about the cell phone number to a conventional person in authority: Hodgson, at para. 45.

[142] In my view, it follows from my colleague's conclusion that defence counsel never conceded that the appellant's disclosure of the 6847 number to Officer Varey was voluntary that defence counsel did not validly waive the voir dire. I would reject the Crown's submission that the appellant effectively advised the court by his conduct and words that a voir dire was not wanted or required. This submission runs contrary to the requirement in Park that a valid waiver must be express and that a failure to object is insufficient.

B. THE PROVISO CANNOT SAVE THIS ERROR

[143] Second, I disagree with my colleague that it is appropriate to apply the overwhelming evidence branch of the proviso.

[144] The common law confessions rule is a longstanding and fundamental guarantee of the accused's rights. The protection against the introduction of involuntary confessions not only ensures the reliability of confessions but also protects the accused's rights and fairness in the criminal process: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 69. The requirement to hold a voir dire is a procedural safeguard that protects the accused's substantive right to have inadmissible statements withheld from the trier of fact's consideration: Erven, at p. 929. Indeed, as the Supreme Court held in Hodgson, at para. 44, the obligation to hold a voir dire flows from "the highly prejudicial nature of confession evidence." In Erven, at p. 937, Dickson J. (as he then was) noted that the requirement to hold a voir dire protects the accused's "most important right" to call witnesses and present argument on the issue of the admissibility of the statement separately from the main trial. Accordingly, as the Supreme Court explained in Park, at pp. 69-70, the failure to hold a voir dire absent an informed waiver will vitiate the conviction subject to the application of the proviso.

[145] It follows that courts should be very cautious to apply the proviso where the trial judge has failed to hold a voir dire. As Dickson J. explained in Erven, at p. 947:

When one considers, however, the function of a voir dire, and the interests at stake in the holding of a voir dire, it will be but rarely that the admission of such statements will have caused no substantial wrong or miscarriage of justice, such that the appellate court may apply [the proviso].

[146] In Erven, at p. 947, Dickson J. also held that the court must consider "the importance of the evidence improperly admitted in light of the whole of the case" when determining whether to apply the proviso to a failure to hold a voir dire. As I have explained, this court can look to both the views of trial counsel and the reasons of the trial judge to assess the relative importance of the improperly admitted evidence and the impact its exclusion would have on the strength of the Crown's case. This court should be cautious in applying the overwhelming evidence branch of the proviso when evidence that both the trial judge and trial counsel viewed as important was improperly admitted. This court must "afford any possible measure of doubt concerning the strength of the Crown's case to the benefit of the accused": Van, at para. 36.

[147] In this case, the appellant's disclosure of his cell phone number to Officer Varey was important evidence. The trial judge said so repeatedly. In his reasons for judgment, he stated that the evidence of Officer Varey linking the appellant to a cell phone number was "important evidence." Likewise, in his Browne v. Dunn ruling, the trial judge noted that the Crown relied on the appellant's disclosure of his cell phone number to Officer Varey to link the appellant to the 6847 number. He referred to the disclosure as "potentially important to the Crown" because the conversations between the 6847 number and C.H.'s phone formed the basis of the possession for the purpose of trafficking in cocaine charge. He later stated that the failure of defence counsel to cross-examine Officer Varey on the disclosure of the 6847 number "relate[s] to matters of substance, indeed, potentially critical points of the Crown's case."

[148] The parties also saw the appellant's disclosure of the 6847 number as important evidence. In her closing address, Crown counsel referred to the disclosure of the 6847 number and then stated that there was no doubt that the texts were exchanged between the appellant and C.H. Defence counsel likewise saw this evidence as important. In his closing, defence counsel strenuously argued that the evidence from the officer that he knew the appellant's phone number was inadmissible hearsay. He relied on the argument that the disclosure of the 6847 number was inadmissible as a central component of his submission that the Crown had failed to prove that the texts between C.H.'s phone and the 6847 number were exchanged with the appellant. While defence counsel's late-breaking hearsay objection was improper, his decision to target the disclosure of the 6847 number with that objection is nonetheless a signal of the importance of this evidence to the Crown's case in the eyes of the defence.

[149] Not only was the evidence important, but the trial judge's reasons for judgment clearly link the disclosure of the 6847 number to the ultimate result. The trial judge explained that this evidence permitted "a linkage to the phone number of 'dad'" found on C.H.'s phone. He then relied on this evidence to make that very linkage and find that the 6847 phone number belonged to the appellant. Accordingly, he admitted the texts sent from the 6847 number as evidence against the appellant under the party admissions exception to the hearsay rule. The trial judge's admission of the texts sent from C.H.'s phone to the 6847 number flowed from this finding, as he admitted the texts sent from C.H.'s phone "either on the basis of apparent common design relating to the drugs, or simply to provide context to the [appellant's] statements." He later relied on this finding that the conversations were between the appellant and C.H. to convict the appellant.

[150] In light of the importance of the disclosure of the 6847 number and its role in the trial judge's reasoning process, I cannot find that there is no reasonable possibility that the verdict would have been different absent this error. I agree with my colleague that there was considerable evidence capable of grounding a finding that the cell phone belonged to the appellant. Yet it is a difficult task for an appellate court to evaluate the strength of the Crown's case retroactively: Van, at para. 36. The trial judge, not this court, was best placed to evaluate the importance of the disclosure of the 6847 number and its effect on the strength of the Crown's case. The trial judge referred to the disclosure of the cell phone number to Officer Varey as "important evidence" that could shore up "potentially critical points of the Crown's case" and the disclosure of the number played a central role in the reasoning process that led him to admit the cell phone records and convict the appellant. In these circumstances, I cannot be confident that he would have reached the same result absent this important evidence. The trial judge's error deprived the appellant of an important procedural protection that safeguards a fundamental substantive right, and he is entitled to the benefit of the doubt in assessing the impact of this error on the ultimate result.

VI. CONCERN ABOUT POLICE CONDUCT

[151] Finally, I cannot help but express my concern about the police conduct that prompted the appellant's confession to possessing the oxycodone pills and the bag of marijuana. Officer Varey's own evidence is that this confession was prompted by Officer Varey's statement that the police would otherwise "rip apart" the appellant's house. After finding the drugs in the basement and in the farmer's field, Officer Varey testified that he engaged the appellant in conversation about the search. In his own words, this is what Officer Varey told the appellant:

I said, 'you know, can you tell us so we don't rip apart your house, if you want to tell us where you're keeping the drugs, then, you know, that would assist us in not having to, you know, kind of go through every, every inch of the house.' [Emphasis added.]

[152] Defence counsel conceded that the confession the appellant made to possessing the oxycodone and marijuana bag was voluntary and ultimately did not contest the two simple possession convictions for the oxycodone and marijuana bag. On this record I cannot fault him for doing so. It is possible he was instructed to do so by his client.

[153] However, the fact remains that Officer Varey's conduct was improper. The law has long recognized that the home attracts special privacy interests. Here, of course, the police had a search warrant and were entitled to search the property. This did not mean that they were entitled to "rip apart" the home. Still less did it mean that they were entitled to use the threat of ripping apart the home to induce the appellant to incriminate himself. It is reasonable to assume that the appellant would have experienced Officer Varey's conduct as particularly coercive precisely because it occurred on private property: see R. v. Le, 2019 SCC 34, at para. 68. I cannot help but think that such conduct undermines public confidence in the police, which is the "worst enemy of effective policing": Le, at para. 162 (citations omitted). The appellant was entitled to expect that Officer Varey would honour the "great responsibilities" to respect the appellant's rights that come with the search and arrest powers that he exercised: Le, at para. 165.

VII. CONCLUSION

[154] The three errors that I have identified must be considered collectively. I have analyzed them individually up to this point in my reasons and am convinced that each of them is individually sufficient to necessitate a new trial. When considered together they indicate even more strongly why it would be unfair to deny the appellant a new trial. In this regard, I would note that, where the appellant has demonstrated multiple legal errors, it is well-established that the reviewing court must assess the cumulative effect of these errors in deciding whether to apply the proviso: R. v. Jackson (1991), 68 C.C.C. (3d) 385 (Ont. C.A.), at pp. 411-412, aff'd , [1993] 4 S.C.R. 573; R. v. Bevan, [1993] 2 S.C.R. 599, at p. 617.

[155] Put simply, the errors that I have identified deprived the appellant of fundamental procedural protections that every accused person is entitled to. The breach of the rule against reopening deprived the appellant of his fundamental rights to know the case he had to meet prior to deciding how to conduct his defence and whether to testify or call evidence and to not be conscripted into assisting with his own prosecution. The procedural failure to hold a voir dire nullified the appellant's right to hold the Crown to its burden to prove the voluntariness of all statements made to persons in authority through a separate voir dire. Finally, the Crown denied the accused the ability to test the admissibility of the text messages by failing to advance the best evidence rule presumption at trial that it now relies on appeal. It is no accident that the Supreme Court, this court, and other appellate courts have urged caution when applying the proviso to these errors given the important fairness interests that these rules aim to protect.

[156] Moreover, each of the errors that I have identified went to the heart of the Crown's case. The reopening evidence went to the central issue of residence, the parties and the trial judge viewed it as important, and the trial judge relied on it to convict the appellant. The Crown thus used Officer Varey's evidence from the reopening to plug the deficiencies in its case on residence that defence counsel had identified in closing submissions. The appellant's disclosure of the 6847 number to Officer Varey that the trial judge admitted without a voir dire is similarly important. The trial judge saw this as important evidence and he relied on it both to admit the cell phone records and to convict the appellant. Likewise, the best evidence rule presumption the Crown now raises on appeal retroactively justifies the disclosure of the important cell phone records that played a key role in the trial judge's reasoning process to convict the appellant.

[157] In the final analysis, it is unfair to deny the appellant a new trial in the face of the three significant errors that I have identified. The appellant has the right to know the case he had to meet, to enjoy the full protection of the common law confessions rule, and to have an opportunity to fully test the admissibility of the critical evidence put against him. The trial judge's errors and the Crown's failure to raise s. 31.3(a) at trial deprived him of these rights. The deprivation was all the more serious because the evidence that was admitted as a result of these errors buttressed multiple critical points of the Crown's case and led directly to his conviction. In these circumstances, I cannot accept that any result but a conviction would be impossible if these errors had not been committed. For the reasons set out above, I would allow the appeal and order a new trial, and I respectfully dissent.

Released: September 3, 2019

"M. Tulloch J.A."