Court File and Parties
Court File No.: 122121 & 122120
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Brent Oster
Before: Justice P.T. Bishop
Heard on: December 18, 2012
Reasons for Judgment released on: January 28, 2013
Counsel:
- Peter Keen, for the Crown
- Mark Van Walleghem, for the accused Brent Oster
BISHOP J.:
Brent Peter Oster stands charged that on or about the 28th day of October 2012 at the Town of Ignace in the said region did being at large on his recognizance entered into before a judge and being bound to comply with a condition of that recognizance directed by the said judge fail without lawful excuse to comply with that condition to wit not to communicate directly or indirectly with any staff of the Ignace School.
FACTS
[1] This matter proceeded to trial on December 18, 2012 at which time the court reserved after a voir dire and requested the Crown and Defence provide written submissions with respect to the admissibility of the computer generated IP address.
[2] Cst. Ron Fults of the Ontario Provincial Police Dryden detachment had received copies of Facebook correspondence from individuals which contained threats purportedly sent by Izzy Rousseau. One message was sent to the husband of the vice principal of the Ignace school. Officer Fults then contacted Facebook to obtain the internet protocol address of those messages.
[3] The law enforcement team at Facebook provided Cst. Ron Fults with the IP address 67.226.247.98.
[4] Cst. Ron Fults then obtained a Production Order from the court and served it on the Dryden Mobility Telephone Service wherein the internet protocol number was confirmed to be at the accused's father's residence where the accused resided.
ISSUES
[5] The issue for the court to decide was Cst. Ron Fults's evidence concerning the IP address on the voir dire hearsay and not admissible or did it meet one of the exceptions to the hearsay rule.
[6] The Crown submitted that the evidence was admissible under the principled exception to the hearsay rule as it was both necessary and reliable. The Crown wished to have the IP address admitted for the truth of its contents.
[7] The Crown submitted that the IP address 67.226.247.98 should be admissible on a necessity and reliability test as the evidence was not available at the time of the trial.
[8] The fact of the matter is that the evidence was available at the time of trial and the Crown did not address its mind to the issue. The Crown stated that he was recently assigned to the case and did not have time to prepare properly. The only evidence about the reliability was through the police officer who essentially stated that it's from Facebook, the law enforcement team and therefore it must be reliable. That evidence is not accepted as there must be better and more complete evidence to attest to the reliability. Simply because a police officer states that it is reliable does not mean that it is reliable. Therefore, neither reliability nor necessity had been proven on the voir dire.
[9] At the end of the case, the court queried whether the evidence was in fact a business record. The Crown then secured an affidavit from Yu Gin Kang, who is employed by Facebook as a custodian of records.
[10] Mr. Kang's affidavit indicated that IP numbers are stored on Facebook's servers and done electronically with the sending of the message.
[11] The Defendant conceded the Crown has now complied with the Canada Evidence Act and is therefore admissible as a business record if the Crown had not closed its case.
[12] It is settled law that business records are admissible by a statute and at common law.
[13] The common law rule can be summarized as follows:
Statements made by an unavailable Declarant under a duty to another person to do an act and record it in the ordinary practice of the defendant's business or calling are admissible in evidence provided they were made contemporaneous with the facts stated and without motive or intent to misrepresent the facts. Each component must be satisfied.
Palter Cap Co v. Great West Life [1936]
*Conley v. Conley*, [1968] 2 OR 677 (Ont.C.A.)
[14] Further, under Section 30 of the Canada Evidence Act, business records are evidence of proof of the content that they are made:
Contemporaneously; and
In the usual, ordinary course of business.
[15] As well, the circumstances surrounding making the record affect the weight and not the admissibility as stated in *R v. Zundel*, [1987] 31 C.C.C. 3d 97 (Ont.C.A.).
[16] A review of the recording of the proceedings on December 18, 2012 disclose that the Crown had not closed its case and may wish to call other evidence.
[17] In these circumstances, the IP address is admissible as a business record under the Canada Evidence Act and at common law.
Released: January 28, 2013
Signed: "Justice P.T. Bishop"