COURT FILE NO.: CR-20-15386

DATE: 20210706

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – NATHAN FORSELLINO Defendant

Kristen Pollock, for the Crown Thomas F. Balka, for the Defendant

HEARD: July 5, 2021

reasons for ruling on instagram messages

leibovich J.

[1] The applicant is charged with the sexual assault of A.G. The Crown intends to call A.G., and her friends A.N. and R.R. The Crown wishes to lead from A.N. a conversation she had with the applicant the day after the alleged sexual assault. The conversation occurred through Instagram. The police took photographs of the purported conversation as captured on A.N.’s phone. A.N. no longer has the Instagram conversation. The applicant objects to the Crown filing the photographs and submits that the Crown has failed to meet the requirements of s. 31.1 to 31.3 of the Canada Evidence Act.

[2] The complainant, A.G., is expected to testify that she texted R.R. before the alleged sexual assault and asked him to pretend to be her boyfriend. The Crown seeks to lead evidence from R.R. that he received such a text and request. The text itself has not been produced. The applicant objects to R.R.’s testimony on this point and states that it is hearsay and the Crown is unfairly using RR to confirm a text that the witnesses failed to keep.

Issue 1: Are the pictures taken of the Instagram conversation between A.N. and the applicant admissible?

[3] The applicant submits that the proposed Instagram evidence of A.N. is contrary to sections 31.1 to 31.3 of the Canada Evidence Act and is therefore inadmissible, specifically that the Instagram evidence lacks authenticity and that the Crown has not met its burden of establishing an absence of tampering. In oral submissions, the defence agreed that the Crown can lead the viva voce evidence of A.N. with respect to this conversation and that she could refresh her memory from the photographs. However, the defence submits that the photos of the Instagram conversation should not be admitted. The defence points out that typically when pictures are taken of a text exchange the pictures will reveal the continuous thread to the conversation. In other words, the bottom of the first page will be reproduced on the second page to show that nothing is being omitted. The pictures in this case, except for the last two pages, do not do that. A.N. could easily have scrolled through her phone and left out portions of the conversation.

[4] The Crown submits that the authentication and best evidence provisions of the Canada Evidence Act are a low threshold and are easily met by the anticipated evidence of A.N. about her participation in the text message conversation on her phone. There is no air of reality to a claim of tampering, and, if there was, that issue goes to weight, not admissibility.

[5] The threshold for admissibility for printouts of electronic communications under the Canada Evidence Act was set out by the Ontario Court of Appeal in R. v. C.B., 2019 ONCA 380 at paras. 57 and following. The burden is on the party, seeking its admissibility, in this case the Crown, to prove the document is authentic. The threshold is a modest one and the Crown must merely “adduce evidence capable of supporting a finding that the electronic document is what it purports to be.” The evidence can be direct or circumstantial.

[6] The Canada Evidence Act deems an electronic record to have met the best evidence rule, set out in s.31.2, if there is proof of the integrity of the electronic documents system by which the document was recorded or stored. The focus is on the integrity of the system and not the document. As Justice Paciocco wrote in Proof and Progress: Coping with the Law of Evidence in a Technological Age, (2013), 11 Can. J. L. & Tech. 181 at 203:

Where there are witnesses attesting directly to the accuracy of the electronic record it can be inferred that the electronic recording system had integrity. Any other conclusion would pointlessly complicate the trial and produce the indefensible outcome that different standards of admissibility would apply to analog and digital photos and recordings. Analog recordings, not being electronic documents, could be admitted using the generous common law standards, but digital recordings would have to comply with a pointlessly grudging requirement that the integrity of the electronic document system be addressed directly.

For this reason, there should never be “best evidence” concerns arising for emails, texts, tweets or Facebook messages that a witness claims to have sent or posted. If a witness authenticates the electronic documents being offered to the court as “accurate” the integrity of the electronic document system can be inferred, and the “best evidence” provisions can be treated as satisfied.

[7] In my view, the Crown has met its onus. It is anticipated that A.N. will testify at trial. She will state that she was a party to this conversation through Instagram with the applicant and that the photographs taken of her phone are the complete conversation between her and the applicant, at that time. As noted in R. v. C.B., at para. 69, “Evidence that A sent a text or email to B whom A believed was linked to a specific address, and evidence of a response purportedly from B affords some evidence of authenticity.”

[8] The defence is not concerned that the photograph of the Instagram exchange has been manipulated but rather that the witness A.N. has excluded portions of the conversation from being photographed. I agree with defence counsel that this discussion could have been avoided if the police had simply made sure that the bottom of one photo was reproduced at the top of the next photograph so a continuous thread could easily be shown. That being said, there is no evidence of manipulation before me and “[r]ank speculation is not sufficient”: R. v. C.B., at para. 72. I note that apart from A.N.’s anticipated evidence on this point the photographs of the conversation do seem to follow logically from page to page and do not, in themselves reveal any gaps. For example, at the bottom of p. 44 the applicant comments about A.N.’s relationship with her boyfriend. On the top of following page, A.N. responds to these comments. On the bottom of p. 46, A.N. comments that the applicant is playing the role of victim and at the top of p. 47 A.N. responds that he is not. Furthermore, as mentioned the bottom of p. 47 is reproduced at the top of p. 48. Finally, as noted by the Court of Appeal in R. v. C.B. at para. 72, “…even if there were an air of reality to such a claim, the low threshold for authentication, whether at common law or under s. 31.1 of the CEA, would seem to assign such a prospect to an assessment of weight.”

[9] The photographs of the Instagram conversation between A.N. and the applicant are admissible subject to editing out any prejudicial comments. If the Crown and defence cannot agree on the edits, I will rule accordingly.

Issue 2: Can the Crown lead evidence from R.R. that the complaint sent him a text asking him to pretend that he is her boyfriend?

[10] The defence submits that the Crown should not be allowed to lead evidence from R.R. to confirm the complainant’s testimony that she sent him a text when the text has not been reproduced. In his written application defence counsel has submitted that the evidence is hearsay. In oral submissions defence counsel softened his position and stated that he does not object to A.G. testifying in a general way that she texted R.R. and asked him to pretend to be her boyfriend and R.R. testifying that he received such a text. The defence objects to specifying exactly what the text says and using R.R. to confirm the existence of the text when the witnesses failed to keep the text. The defence objects to using R.R. to confirm a document that does not exist. The Crown submits that the evidence is not hearsay and it is merely being led to confirm the complainant’s testimony that she sent the text and that there is nothing prejudicial about the witnesses giving their specific recollection of what the text said.

[11] I see no difficulty in the Crown leading evidence on this point. It is expected that A.G. will testify that shortly before the sexual assault she texted R.R. and told him to pretend that he was her boyfriend and that she then told the applicant she was calling the person she was dating. It is expected that R.R. will confirm receipt of the text. The text has never been reproduced and the witnesses are expected to explain why it has been deleted. The defence does not dispute that the Crown is entitled to lead evidence from the complainant that she sent the text and that the Crown is entitled to lead evidence from R.R. confirming that a text was received setting out the request. The evidence that A.G. asked R.R. to pretend to be her boyfriend is not being led for the truth of its contents but for the fact that A.G. made the request. There is nothing untoward about A.G. or R.R. giving their specific recollection about what the text said. I do not agree with defence counsel’s submission that doing so would give the matter an undeserved mark of authenticity. Limiting the witnesses to talking in general terms would be artificial and would not assist anyone. The defence will be able to cross-examine the witnesses on the accuracy of their recollection and their explanation for why the text was not preserved. Ultimately, in the absence of the actual text, the jury will need to assess the cogency of the witnesses’ viva voce evidence on this point.

Justice H. Leibovich

Released: July 6, 2021

COURT FILE NO.: CR-20-15386 DATE: 20210705

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN – and – NATHAN FORSELLINO

REASONS FOR RULING

Leibovich J.

Released: July 5, 2021