WARNING

The court hearing this matter directs that the following notice should be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4 of the Criminal Code :

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code , chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code , chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court File and Parties

COURT FILE NO.: CR-11-0151
DATE: 20120423

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:
HER MAJESTY THE QUEEN – and – R.L.

Counsel:
C. Trivett, for the Crown
B. Cugelman, for the Accused

HEARD: April 16, 2012

EBERHARD, J.

RULING #2 - ADMISSIBILITY OF FACEBOOK PAGES

[1] The defence seeks to admit five pages from the complainant’s Facebook printed by K.L., wife of the accused. As her foster parent, K.L. was an accepted “friend” of N.B. giving her access to her Facebook pages.

[2] In a voire dire convened in the middle of cross-examination of the complainant to assess admissibility, the defence called another former foster child who happened to be in the hall under an order excluding witnesses, to explain how Facebook works. She explained that the profile page on Facebook can only be changed by the account holder, unless someone else “signs on” as the account holder with her password.

[3] I find that the pages are presumptively N.B.’s and that as a form of record of N.B.’s statements Facebook or other social media may be admissible if otherwise proper. Privacy concerns, addressed frequently in the civil context in cases such as Re McDonnel [2011] O.J. No. 5689 relied on by the defence, may be overcome by relevance.

[4] To determine whether the pages of this record are otherwise proper, I turn to the individual pages.

[5] Exh. A5 on the voire dire was printed 17/08/2010. It appears to be an exchange between the complainant and her boyfriend on June 7, 2010. According to K.L. it was on the Facebook pages open to all “friends”. The subject appears to be an exchange of endearments in which N.B. writes, inter alia , “How I wish you could see and believe how crazy I am f…..[copy incomplete]and to know there is nothing I wouldn’t do or say for you.” The defence submits this evidence supports the defence theory that N.B. was anxious to leave the restrictions of her foster home to have more freedom with her boyfriend.

[6] This sentence is inextricably embedded in a flow of endearment that references sexual activity, ambiguous as to whether it refers to conduct or longing. Without the context the statement of relevance to the theory is impossible to assess.

[7] The trial began with an Application under s.276. Since that ruling there have now been three attempts to admit evidence of sexual activity. The commonality is that each involves a matter associated with N.B., known or discovered by the L.s, suggesting her interest in sex. Each is ambiguous as to her participation requiring, if relevant, a diversion from the focus of trial. More troubling is the purpose of the evidence. It cannot be related to consent as consent is not an element in this prosecution. It may support the theory that N.B. wished more freedom with her boyfriend, but it is not necessary for that purpose as there is evidence otherwise before the trier such as her disclosure to him, her relationship with him, their secret internet communication contrary to house rules. On the other hand, the potential for misuse of the evidence to infer that N.B., by reason of sexual activity, at age 14, demonstrates she is a bad girl who less worthy of belief.

[8] There was opportunity in the s.276 application to fully canvass all the sexually suggestive activity that the defence has had in their possession. Having chosen not to put forth these additional examples when s276 admissibility was addressed, the defence cannot expect, on the 5 th day in a jury trial estimated for five - seven days, to return repeatedly to the issue as new examples arise. However, this facebook page has put me to that consideration and I find that the evidence offends s.276.

[9] I find that splicing off the sentence put forward to support the theory expressed, is not necessary because there is other evidence available to support that theory and the prejudice of taking a line out of its context outweighs the probative value.

[10] Exh. A4, of uncertain date, appears to be a quote of lyrics from a love song with the line “Can’t live without you” followed by a heart.

[11] This page is not probative of anything. It will not be admitted as no relevance is demonstrated.

[12] Finally, I turn to Exh. A1-3 which appear to be N.B.’s profile pages. They were printed by K.L. on August 10, 2010, shortly after her husband’s arrest. The teenage witness called on the voire dire could assist by saying that only someone with N.B.’s password could alter this page but there is no evidence to assist with a determination of when the information was posted on the page.

[13] The passages of interest are 1] “Relationship status: Engaged to D.C.”. Anniversary: February 13, 2010”. Other evidence explains that was when they first “dated”. ; and 2] Likes and Interests. Activities …. Thereafter a two page small print passage follows, stream of consciousness in form, profane, silly, partly conversational with unknown persons . It contains a number of potentially relevant statements:

“My bedroom is not messy…I just chose to lay my clothes out on the floor so I can see them better”; “ When you turn your lights off downstairs than run upstairs so nobody kills you., Umm, believe it or not, I actually can hear you talking about me”; “ ‘did you clean your room?. “Yea” ‘okay ima go check” ‘no wait im not finished!”

[14] I find, the long passage is mostly just patent silliness. Of the potential lines forming an infinitesimal portion of the whole that could be relevant, I find the references to cleaning the room add nothing to the admission of the complainant that there was escalating dispute about this issue. Insofar as there is reference to being able to hear talking upstairs as N.B. has said before to K.L., it has no bearing on the issues in the trial.

[15] Even if there were, in this, some scant probative value the prejudice to the trial process is stark. Recognizing as I have the privacy interests have been found secondary to admission of Facebook evidence in some cases, in the present case the evidence put to the witness from her Facebook page would be numbingly intimidating. There for all to see are her silly, profane, vulgar teenage rants about this and that.

[16] Moreover, in the short recess following production of these pages, the crown was able to “Google” several passages to demonstrate that much of the passage is lyrics from songs or lines from movies.

[17] Neither the content of the profile page, nor the cultural references, nor the language of Facebook are self evident. The witness K.L. didn't know. Neither counsel purported to know. I don’t know despite casual familiarity with Facebook. The point is, the trier of fact, citizens but hardly peers of the witness, cannot be expected to know.

[18] The witness is in the midst of cross-examination so the Crown cannot be permitted to discuss the page with her.

[19] I raised with counsel about the introduction of five pages of a record that is likely much larger, changing over time, with considerable complexity as to its conventions, its preservation as a contemporaneous record, completeness and language.

[20] Defence counsel asserted it is open to the defence to put forward any portion of a record.

[21] Be that as it may, it then becomes necessary for the crown to seek the larger record, assess the context, call evidence to explain the conventions and content. To do so they would require time before commencing re-examination of their witness confronted in cross-examination with this partial record, unclear as to date of creation.

[22] This is an diversion of the focus of the trial which would expand its time boundaries unpredictably.

[23] In the circumstances of this small probative value on points otherwise admitted, patent prejudicial effect, diversion of the focus of the trial and the effect it would have on the trial continuing expeditiously, I find that admission would bring the administration of justice into disrepute.

EBERHARD, J.

Released: April 23, 2012