Court File and Parties

Court File No.: 47/21 Date: 2022-02-23

Ontario Superior Court of Justice

Summary Conviction Appeal Court

Between: Her Majesty The Queen, Respondent and Nanette Ndona-Mbuende, Appellant

Counsel: Ryan Morrow, for the Respondent Pierre-Gabriel Grégoire, for the Appellant

Heard: January 12, 2022, by video conference

Reasons for Judgment

[On appeal from the conviction entered by Justice A. Calsavara of the Ontario Court of Justice at Milton on January 27, 2021]

F. Dawson J.

[1] The appellant was employed as a teacher assistant at a French language daycare centre. She was convicted of assault based on her interaction with a seven-year-old boy, T.T., on the afternoon of June 28, 2019. The trial judge found that the appellant grabbed T.T. by the throat out of anger and frustration after T.T. and two other boys ignored her requests to give her a toy which the boys were throwing between themselves.

[2] The appeal is based primarily on the contention that the trial judge misapprehended two important aspects of the evidence by failing to give proper effect to that evidence. The appellant submits that the misapprehensions led the trial judge to draw unreasonable inferences used to reject the main defence advanced at trial that the evidence of the children was fatally tainted by a form of collusion, and to her rejection of the alternative defence of corrective force pursuant to s. 43 of the Criminal Code. As a result, the appellant submits that the verdict is unreasonable, requiring this court to enter an acquittal, or that there has been a miscarriage of justice requiring a new trial.

An Overview of the Evidence at Trial

[3] The prosecution’s case consisted of the evidence of the director of the daycare and of three children: M.B., J.M. and T.T. The defence case consisted of the evidence of one child, R.B., and of T.T.’s mother, L.T. In addition, medical records of an examination of T.T. some hours after the incident and computer chats between L.T. and the mothers of some of the other children who testified were also filed. The appellant did not testify. However, statements made by the appellant denying she had choked T.T. were introduced through the director of the daycare.

[4] The alleged assault occurred when the appellant was substituting for the children’s regular teacher who was on her afternoon break. The director of the daycare, Ms. Radia Achour, testified that she learned of the alleged assault from the children’s regular teacher, who came to her office soon after her break. Ms. Achour thought the break may have been from 1:00 to 2:00 p.m. but said a few times that she was uncertain of that. She said that as soon as she learned of the incident, she went to the classroom to investigate. She said the children were rowdy and laughing and some of them were shouting that the appellant choked T.T., or words to that effect.

[5] Ms. Achour said she identified four children who claimed to have seen the incident. She wanted to interview them all but some of them were picked up by their parents before she could do so. Ms. Achour decided to interview a five-year-old girl M.B., because she was calm, and T.T. because he was the alleged victim. M.B. and T.T. were removed from the classroom and interviewed separately while Ms. Achour videotaped them with her cell phone. Those cell phone videos were introduced into evidence as part of M.B. and T.T.’s examinations-in-chief pursuant to s. 715.1 of the Criminal Code.

[6] In two brief video clips M.B. demonstrated how the appellant’s hand was placed on T.T.’s throat. At trial she testified that the appellant choked T.T. She said did not think she knew the word “choke” at the time of the incident.

[7] In his video interview with Ms. Achour, T.T. demonstrated and described how the appellant placed both her hands around his neck with her thumbs at the front of his throat. T.T. testified that the choking lasted about three seconds and that he could not breath. He said the appellant removed one of her hands to reach down for the toy he and his friends had been throwing, before removing her other hand from his throat.

[8] The interviews conducted by Ms. Achour were in the French language. French and English transcripts of the videos were filed with the videos at trial. Ms. Achour testified in French. The trial was conducted in English. Interpretation into French was provided for the appellant. Counsel on both sides were bilingual.

[9] The first misapprehension of the evidence alleged by the appellant relates to metadata associated with the videos taken by Ms. Achour with her cell phone. Defence counsel at trial cross-examined Ms. Achour on the creation times found in the properties menu after it was selected from the file menu associated with the media used to display these videos at trial. The appellant submits that the trial judge failed to give proper effect to those timestamps as “real evidence”, leading to the unreasonable conclusion that M.B. and T.T.’s initial videos recorded their evidence before there was any real opportunity for their evidence to be tainted by what was going on in the classroom.

[10] Ms. Achour testified that after her interviews with M.B. and T.T. she called the appellant to her office. She asked the appellant what happened and showed her the video of T.T.’s interview. According to Ms. Achour, the appellant said the children were unruly and denied that she choked or assaulted T.T.

[11] T.T.’s mother, L.T., said she noticed a missed call from the daycare on her cell phone timed at 2:50 p.m. No message had been left. Ms. Achour thought L.T. arrived to pick up her son between 2:30 and 3:00 p.m. L.T. said she was not sure when she arrived at the daycare but testified that she typically picked her son up between 4:30 and 5:30 p.m. However, she noted it was the start of a long weekend and that she had planned to go camping.

[12] When L.T. arrived at the daycare she was advised of an incident and directed to Ms. Achour’s office. Her son told her what occurred. Ms. Achour testified that while meeting with L.T. and T.T. she again invited the appellant to her office. The appellant again denied the assault and got down in front of T.T. and leaned in towards him as she continued to deny the incident. At that point T.T. waivered in his insistence that the assault occurred. L.T. testified that she then “shut down” what she felt was inappropriate conduct that was scaring her son. The trial judge also found that this conduct was intimidating and not appropriate.

[13] After leaving the daycare L.T. took her son to a police station to make a complaint. She testified that the police insisted on calling paramedics and that the paramedics insisted that her son be taken to a hospital by ambulance to be examined by a doctor. Medical records filed on consent showed that T.T. was examined by a doctor at 9:09 p.m. No injuries, unusual cough or signs of trauma were reported.

[14] T.T. returned to the police station the following day to provide a statement. That interview was video recorded and also became part of T.T.’s evidence pursuant to s. 715.1 of the Criminal Code.

[15] J.M., who was seven years old at the time of the incident, also testified as a Crown witness. Ms. Achour described him as very vocal about the incident when she attended the classroom to investigate. He was not interviewed by Ms. Achour but provided a video recorded statement to the police on July 8, 2019 which was admitted as part of his evidence pursuant to s. 715.1 of the Criminal Code.

[16] J.M. testified that he, T.T. and R.B. were throwing a toy around. He said R.B. threw the toy at the appellant which led to her angrily telling them to sit down. He said that when he and his friends continued to laugh and play the appellant grabbed T.T. by the throat with both hands. At first, he said the appellant held T.T. for 10 minutes, but later said it was not for long. He described the toy the children were playing with differently than T.T. did.

[17] The second misapprehension of evidence alleged by the appellant relates to the evidence of R.B., who was called as a defence witness.

[18] R.B. was one of the boys throwing a toy with T.T. and J.M. Unlike the other boys, R.B. was not interviewed by the police until six months after the incident. However, his police interview was video recorded and was introduced as part of his evidence pursuant to s. 715.1 of the Criminal Code.

[19] R.B. initially said that he remembered playing with two other boys named Lucas and Noah. He recalled the appellant telling them to stop and them not listening to her. Initially he believed that it was Lucas who was grabbed by the neck. With some prompting, he agreed that T.T. was part of the group and had the toy when the appellant yelled at them. He then thought T.T. somehow got hurt. In cross-examination by Crown counsel he said he did not have a good view of what was occurring and agreed that the appellant may have grabbed T.T.

[20] In his video interview R.B. demonstrated what occurred on the police officer who conducted the interview. During that demonstration R.B. placed his hands on the officer’s shoulders, rather than his neck, when indicating where force was applied by the appellant. During his trial testimony R.B. similarly demonstrated an application of force to the shoulders by placing his hands on his own shoulders.

[21] The appellant submits that the trial judge failed to give proper effect to R.B.’s evidence by finding that R.B.’s evidence was generally supportive of T.T.’s allegations and by failing to appreciate its significance in relation to the alternative defence that, if there was an application of force by the appellant, it was applied reasonably by way of correction, and was therefore justifiable under s. 43 of the Criminal Code.

The Trial Judge’s Reasons

[22] Although the trial judge’s reasons were presented orally, they were obviously carefully prepared. They were comprehensive and responded to every argument made during closing submissions, although they did not contain much in the way of analysis in relation to the metadata. However, as I will explain below, that issue did not emerge with clarity at the trial. Defence counsel did not seek a ruling that the timestamps be admitted as real evidence and was content to cross-examine Ms. Achour on the timestamps without providing any other evidential foundation to establish the authenticity or threshold reliability of that data. For example, no direct evidence was led to show that the timestamps were artifacts of making the video rather than of file creation or the transfer of the video to a computer.

[23] The trial judge devoted a separate section of her judgment to the position of the defence. She observed that the defence position was denial – that no such incident had occurred. The trial judge observed that the defence contended that T.T. had a motive to lie because he did not like the appellant based on a prior experience. She also expressly acknowledged that the defence submitted that the accounts by T.T. and the other young witnesses were tainted in at least two ways: by utterances the other children made while in the classroom and by T.T.’s mother, L.T., who fuelled the investigation and ratcheted up her son’s reaction to the incident. The trial judge went on to describe in more detail the circumstances defence counsel advanced in support of the various defence submissions.

[24] In her analysis the trial judge reviewed substantially all the evidence, making her findings of fact as she proceeded. The trial judge made the following findings which are germane to the grounds of appeal:

(1) Ms. Achour went to the classroom as soon as she learned of the incident.

(2) Ms. Achour took M.B. out into the hallway within minutes of her arrival at the classroom and spoke to M.B. while recording video on her phone.

(3) M.B. told Ms. Achour on video that “Ms. Nanette [the appellant] did this to [T.T.]”, whereupon M.B. grabbed the centre of her throat with her right hand with her fingers clutching the left side of her neck. The fact hat M.B. did not gesture with both hands to the neck may have been because she was clutching a stuffed animal with her left hand when spoken to by Ms. Achour. M.B. made the same demonstration in a second video clip from the same interview while still holding the stuffed animal.

(4) Ms. Achour interviewed T.T. later, after she returned to her office with T.T.

(5) Ms. Achour testified that she understood the correct technique in questioning children and that she did not influence the children’s answers.

(6) The last thing Ms. Achour wanted was a serious allegation of assault at her daycare. She had been pleased with the appellant’s performance to that point. Therefore, any bias Ms. Achour had favoured the appellant.

(7) M.B.’s video, made soon after the incident, was strong and persuasive evidence supporting the charge. M.B.’s trial testimony was also straightforward and compelling.

(8) T.T. was interviewed by Ms. Achour shortly after M.B.’s interview. While Ms. Achour did not know the exact time, her evidence was that there was about 15 minutes between M.B. and T.T.’s videos. Both videos were accordingly taken close in time, both shortly after Ms. Achour was first summoned to the classroom and shortly after the alleged assault.

(9) Although Ms. Achour was cross-examined with reference to the timestamps displayed in the courtroom “these timestamps or their significance were not adopted or established”.

(10) Ms. Achour did not know if the precise times suggested in cross-examination based on the timestamps were accurate but was clear that the videos were taken shortly after she learned of the incident.

(11) The reliability of Ms. Achour’s evidence on timing was reinforced by L.T.’s evidence that she received a missed call from the daycare at 2:50 p.m.

(12) In T.T.’s video interview by Ms. Achour, T.T. said the appellant asked R.B. for the toy they were passing. The appellant said ‘stop’. T.T. said after that, “She choked me to get the boomerang”. At that point T.T. demonstrated by grasping his neck with both hands with his thumbs in the centre of his neck. He then removed one hand and reached down, as if to get the toy.

(13) Given the defence allegation that T.T.’s mother was influencing T.T.’s evidence up to and including his trial testimony it was permissible to compare the details in T.T.’s various accounts, not to bolster his credibility, but to consider whether there was any tainting. The trial judge found that there was no tainting.

(14) In various statements attributed to the appellant she denied the assault. Ms. Achour showed the appellant T.T.’s video. The appellant denied holding T.T. by the throat. The appellant advised Ms. Achour that the children were laughing, running and throwing toys, and would not listen to her. She said she tried to calm them down and told them to stop.

(15) The trial judge disbelieved the appellant’s denials. Considered alone or in the context of the other evidence they did not raise a reasonable doubt. The surrounding details given by the appellant were consistent with parts of T.T.’s account.

(16) While it may not have been the appellant’s intent to intimidate T.T. in Ms. Achour’s office after L.T. arrived, that was the effect of what happened when she crouched down, leaned in close to T.T. and repeatedly denied the assault. The court could place no weight on T.T. wavering slightly in his response in those circumstances.

(17) The trial judge considered various inconsistencies relied upon by the appellant and explained why they did not affect her assessment of the credibility and reliability of T.T.’s evidence. She found the evidence of M.B. and T.T. to be both credible and reliable.

(18) To the extent T.T. and M.B. heard J.M. and other children speaking out about the incident, that did not “derogate from the reliability of their own accounts, both secured freshly and unrehearsed, moments after the incident” each of which contained a similar demonstration of what occurred.

(19) The appellant became frustrated with the misbehaving boys, got angry, “lost her cool” and grabbed T.T. by the neck in a choking manner.

(20) After fully reviewing R.B.’s evidence, and various differences between his evidence and that of the others, including that the appellant touched Lucas or possibly T.T. more by the shoulders, the trial judge found that R.B. was misremembering, was unsure of his vantage point and had made understandable mistakes about what happened. She found his evidence, considered alone or in the context of the other evidence, did not raise a reasonable doubt and overall “fortified” her finding that the appellant grabbed T.T. “with two hands in anger”.

(21) With respect to s. 43 of the Criminal Code, the trial judge noted that the appellant denied any assault and found that there was no basis for the defence. However, even if there was an air of reality to that defence, on the facts found, s. 43 provided no justification for what occurred because the appellant applied force out of anger and frustration and not for educative or corrective purposes.

[25] The trial judge made other findings of fact and analysed evidence I have not referred to.

Misapprehension of the Evidence as a Ground of Appeal

[26] The appellant acknowledges that a stringent test must be met before an appeal is allowed on the basis that a trial judge misapprehended the evidence. First, the misapprehension must be demonstrated. As held in R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.), [1995] O.J. No. 639, at para. 83: “A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to the evidence”. However, that is not the end of the matter. The reviewing court must go on to consider, whether having regard to the misapprehension, the verdict is unreasonable. If not, the court next considers whether the misapprehension caused a miscarriage of justice. If not, the court next considers whether the misapprehension constitutes an error of law which amounts to a substantial wrong or miscarriage of justice: Morrissey, at para. 88; R. v. Stennett, 2021 ONCA 258, at para. 51.

[27] Before it can be said that a misapprehension of evidence led to a miscarriage of justice it must be shown that the misapprehension was material rather than peripheral to the reasoning of the trial judge and that it played an essential part in the reasoning process leading to the conviction: Morrissey, at para. 93; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2; R. v. Smith, 2021 SCC 16, at para. 2.

ANALYSIS

The Misapprehension Alleged in Relation to the Timestamps

[28] A further examination of the evidence is required to resolve this ground of appeal.

[29] Ms. Achour was the first witness to testify. She briefly described how she video recorded her interviews with M.B. and T.T. on her phone. The respective videos were marked as lettered exhibits pending their adoption by M.B. and T.T. in their testimony and pending the determination of certain issues related to their admissibility raised by the appellant which were resolved later in the trial. Those issues form no part of the appeal.

[30] At trial the videos of M.B. and T.T.’s interviews by Ms. Achour were contained on a single USB. How the videos made their way from Ms. Achour’s phone to that USB was not explored. The videos were played, and the USB filed, without objection by the defence.

[31] No mention was made of the timestamps associated with the videos until Ms. Achour’s cross-examination. First, defence counsel asked Ms. Achour if she created the title “Interview of [M.B.] one” on the video. Ms. Achour said she put that title on and sent the video to the police. It seems from the transcript that counsel then displayed something to the witness on the screen which said “Media created June 28, 2019, 3:13 p.m.” What was shown was never preserved for the record. I note that defence counsel at trial (not Mr. Grégoire) did make and file a screen shot of part of another video a witness was questioned on, demonstrating that such a record can be easily preserved.

[32] On the appeal counsel agree that at trial defence counsel clicked on the file menu and selected “properties” from that menu in order to display the “created” date and time associated with the video used in the courtroom. This could not be duplicated with the material submitted to this court electronically for the appeal. The appeal was heard virtually due to the Covid-19 pandemic. However, after some difficulty, appellant’s counsel was able to share his screen and provide a demonstration, presumably using his copy of the computer media filed at trial.

[33] Returning to Ms. Achour’s cross-examination, she said incidentally that the video “wasn’t in the file”. She said it was in her phone. She said that when the police called and asked her to send “the photos”, she then “put it in the file”. At other points Ms. Achour said she was not good with computers. It seems that Ms. Achour had to create a file and move the videos from her phone to a computer in order to send them to the police. She also said, “I didn’t put it in the file for the police officer the same day.”

[34] At that point defence counsel said she was showing Ms. Achour some “metadata” in relation to M.B.’s video which “suggested” the video was taken at 3:13 p.m. Counsel asked Ms. Achour whether that time was accurate “more or less” and Ms. Achour said that she did not remember.

[35] Ms. Achour was cross-examined in a similar way in relation to the timestamps found in the properties menu associated with the other M.B. video clip, which indicated a creation time of 3:12 p.m., and in relation to T.T.’s video, which indicated a creation time of 4:10 p.m. It was suggested to Ms. Achour that these timestamps were inconsistent with her testimony that she went immediately to the classroom and acted promptly. This cross-examination was the basis for counsel’s later submission that the evidence of the child witnesses was tainted because time elapsed before they were interviewed. Trial counsel submitted that the delay provided an opportunity for collusion and probably exposed the child witnesses to the sentiments some children yelled out when Ms. Achour first attended the classroom.

[36] During this part of Ms. Achour’s cross-examination the trial judge became concerned about fairness, in that the metadata was being put to the witness as if it was accurate in circumstances where the witness may not understand or agree with that. Ms. Achour interjected that she was not watching a clock, as she was dealing with a serious incident. Crown counsel then objected on the basis that the metadata should not be put to the witness as accurate without a foundation, which might require expert evidence. The issue was then canvassed in the absence of the witness.

[37] In the absence of the witness defence counsel took the position that the metadata was part of the exhibit, was accessible to all parties and should be considered without the need for expert evidence. The trial judge advised counsel that she did not think an expert witness was required, that the “metadata shows what it shows” and said that it could be used as a good faith basis for cross-examination. However, the trial judge expressed a continuing concern that the timestamps were being put to the witness as an accepted fact. The trial judge said she was not sure that was right, although she also said, “it is some evidence”. However, the trial judge ruled that the timestamps should not be put to the witness with the implication they were “conclusive proof” of the times when the videos were made. The discussion ended with defence counsel indicating that she would continue with her cross-examination, while maintaining that the metadata was admissible. The trial judge said that admissibility was not the issue but reiterated that counsel should not be suggesting to the witness that the timestamps were conclusive proof.

[38] When the witness returned, cross-examination on the timestamps continued. Counsel attempted to confirm that the regular teacher’s break was from 1:00 to 2:00 p.m. Significantly, Ms. Achour said she could not remember what time the break was but said it was in the afternoon. When pressed on whether she had reason to doubt that the timestamps accurately reflected when the videos were taken, Ms. Achour consistently maintained that she could not say an exact time but that she did not waste any time after she learned of the incident. When asked if anyone had tampered with the videos before they were sent to the police, Ms. Achour repeated that she was not good with computers.

[39] In due course the trial judge again raised with defence counsel that she was treating the witness as if her evidence was conclusively contradicted by the timestamps when the witness was not able to authenticate them. Counsel submitted that there was no need to authenticate the timestamps because they were part of an electronic record. Counsel again proceeded with her cross-examination.

[40] Ms. Achour maintained that she could not tell the court the times when she did things. However, she again said that she started her investigation as soon as the regular teacher’s break was over. She disagreed with a suggestion that she waited until the end of the day to talk to T.T. She said she thought she spoke to T.T. between 2:00 and 3:00 p.m. When asked if the video of T.T. was taken at 4:10 p.m., she said she did not recall.

[41] Clearly, the trial judge was aware of the timestamp evidence. She referenced Ms. Achour’s cross-examination in her reasons, noting that neither the timestamps nor their significance were adopted or established. This is a correct statement based on the record. In the next paragraph of her reasons the trial judge referred to Ms. Achour’s evidence that she did not know the precise times or whether the timestamps were accurate but was clear that the videos were taken soon after the incident. These comments show that the trial judge also considered the timestamp evidence.

[42] Counsel for the appellant submits, however, that the trial judge’s consideration of the evidence did not go far enough. Mr. Grégoire submits that, as no evidence was adduced by the Crown which questioned the metadata, it should have been accepted at face value by the trial judge as accurately establishing when the videos were created. He submits that the trial judge erred in limiting her consideration of the metadata because it was not accepted as accurate by Ms. Achour. He submits that the trial judge erred by failing to recognize that the timestamps constituted real evidence. The trial judge’s error, he submits, was in not otherwise considering the timestamps as real evidence which contradicted Ms. Achour’s evidence about the timeline. That in turn, he submits, undermines the basis for the trial judge’s conclusion that the videos of M.B. and T.T. were made before their evidence could be tainted. The submission is that the trial judge failed to give proper effect to the timestamp evidence as real evidence, which undermines the basis for her conclusion that M.B. and T.T.’s accounts were credible and reliable – the central issue in the case.

[43] I am unable to accept these submissions for a number of reasons.

[44] First, I am not persuaded that on this record the timestamp evidence was admissible as real evidence because the evidence had not been authenticated as required by s. 31.1 of the Canada Evidence Act, R.S.C. 1985, Chap. C-5 (CEA) or in accordance with the requirements of the common law. That did not preclude defence counsel at trial from cross-examining based on the timestamps, which happened here. Such cross-examination may have led to authentication of the timestamps by adoption or to the uncovering of some other circumstances relevant to the authenticity or reliability of the timestamp evidence. It was also appropriate cross-examination in terms of fleshing out the credibility and reliability of the witness’s evidence. However, in the absence of the witness adopting or validating the timestamps, some other evidence was required to authenticate the metadata before it achieved admissibility as real evidence to be independently considered in relation to the issue of when the videos were made, as submitted by the appellant.

[45] The requirements for the admissibility of real evidence, including that of an electronic nature, were canvassed by Watt J.A. in R. v. C.B., 2019 ONCA 380. That case bears some similarity to this one. The issue in C.B. was whether the authenticity of text messages and photos said to be from a Crown witness’s cell phone and introduced by the defence in cross-examination, had been established.

[46] At paras. 64 to 68 of C.B., Watt J.A. instructed as follows:

[64] The requirement of authentication applies to various kinds of real evidence. Authentication involves a showing by the proponent of the evidence that the thing or item proffered really is what its proponent claims it to be: Kenneth S. Broun, ed., McCormick on Evidence, 7th ed., vol. 2 (Thomson Reuters, 2013), at 212, pp. 4-5.

[65] Authentication is the process of convincing a court that a thing matches the claim made about it. In other words, it is what its proponent claims it to be. Authentication is intertwined with relevance: in the absence of authentication, the thing lacks relevance unless it is tendered as bogus. Thus, authentication becomes necessary where the item is tendered as real or documentary evidence.

[66] At common law, authentication requires the introduction of some evidence that the item is what it purports to be: R. v. Donald, [1958] N.B.J. No. 7, 121 C.C.C. 304 (C.A.), at p. 306 C.C.C.; R. v. Staniforth, [1979] O.J. No. 1026, 11 C.R. (3d) 84 (C.A.), at p. 89 C.R.; R. v. Hirsch, [2017] S.J. No. 59, 2017 SKCA 14, 353 C.C.C. (3d) 230, at para. 18. The requirement is not onerous and may be established by either or both direct and circumstantial evidence.

[67] For electronic documents, s. 31.1 of the CEA [Canada Evidence Act, R.S.C. 1985, Chap. C-5] assigns a party who seeks to admit an electronic document as evidence the burden of proving its authenticity. To meet this burden, the party must adduce evidence capable of supporting a finding that the electronic document is what it purports to be. Section 31.8 provides an expansive definition of "electronic document", a term which encompasses devices by or in which data is recorded or stored. Under s. 31.1, as at common law, the threshold to be met [page14] is low. When that threshold is satisfied, the electronic document is admissible, and thus available for use by the trier of fact.

[68] To satisfy this modest threshold for authentication, whether at common law or under s. 31.1 of the CEA, the proponent may adduce and rely upon direct and circumstantial evidence. Section 31.1 does not limit how or by what means the threshold may be met. Its only requirement is that the evidence be capable of supporting a finding that the electronic document "is that which it is purported to be". That circumstantial evidence may be relied upon is well established: Hirsch, at para. 18; R. v. Colosie, [2016] O.J. No. 1473, 2016 ONSC 1708 (S.C.J.), at para. 25; R. v. Bulldog, [2015] A.J. No. 813, 2015 ABCA 251, 326 C.C.C (3d) 385, at para. 35; see, also, R. v. Evans, [1993] 3 S.C.R. 653, [1993] S.C.J. No. 115, at p. 663 S.C.R. This accords with general principles about proof of facts in criminal proceedings, whether the facts sought to be established are preliminary facts on an admissibility inquiry or ultimate facts necessary to prove guilt.

[47] Having reviewed the entire record, I am not persuaded that there was sufficient direct or circumstantial evidence adduced to meet even the low threshold required to authenticate the timestamp metadata in question. Counsel for the appellant drew my attention to the fact that the properties menu continued to display the offence date as the creation date, although Ms. Achour testified that she forwarded the videos to the police on a subsequent date, as some evidence of authenticity. I point out, however, that what is in issue are the times as opposed to the date. Ms. Achour also testified that after making the videos she had to transfer them to a computer. She made a file and transferred the videos to the file, which she named, first. She said she was not good with computers. Despite what she said about sending the videos to the police it is not at all clear how she handled the videos on the day of the incident. That was never made the subject of a pointed inquiry at the trial.

[48] A host of cases suggest that caution is required before relying on creation dates and timestamps as, in some circumstances but not others, they can be affected by the software involved and the movement or transfer of the data. See for example, Lalli v. Athwal, 2017 BCSC 1931, at paras. 93-94, 108, 112-113; Su v. Lee, 2016 BCSC 592, at para. 495; R. v. Hamdan, 2017 BCSC 676, at para. 35; Canadian Imperial Bank of Commerce v. R., 2015 TCC 280, at para. 240; LTS Infrastructure v. Rohl, 2019 NWTSC 10, at para. 29. These cases are not determinative or directly applicable but highlight the need to have evidence to authenticate that the metadata represents what the proponent of the evidence says it does.

[49] Here, the proponent of the evidence tendered it during Ms. Achour’s cross-examination hoping to establish the times when the videos were made. The appellant’s trial counsel became aware that there was a concern that the timestamps had not been shown to be accurate through the trial judge’s comments and Crown counsel’s objections. But aside from making a brief reference to s. 31.1 of the CEA, trial counsel chose not to engage with the issue and proceeded to use the timestamps as a basis for cross-examination. No ruling was sought that the timestamps were admissible as real evidence. There was no purposefully directed inquiry at trial into precisely how and when Ms. Achour handled or moved the videos. The record is silent as to the type of phone used and about the software used to capture, store or transmit the videos. It is not known whether the time settings on Ms. Achour’s phone were accurate.

[50] At trial and on appeal the appellant submitted that because the metadata was embedded in the trial exhibit and was accessible to all parties it was admissible as real evidence. I am unable to agree with this submission. In Graham Underwood and Jonathan Penner, Electronic Evidence in Canada (Carswell, 2010), in s. 12:7, the authors indicate that the purpose for which electronically stored information (ESI) is tendered will dictate its admissibility requirements. The authors give as an example offering metadata associated with an email for the purpose of demonstrating that the email was sent from a specific computer at a specific time. The authors express the view that in those circumstances the proponent of the evidence would have to demonstrate the authenticity of the metadata itself.

[51] In footnote 7 found within the referenced section of the text, the authors observe that the metadata may or may not be accurate, for example because the time and date settings in the computer may not be accurate. The authors indicate that such considerations relate to admissibility at the threshold reliability stage but are not part of establishing authenticity. They state that: “Authenticity is concerned only with whether or not the ESI that actually existed on the source computer was accurately captured and is being accurately conveyed to the court.”

[52] To the extent this formulation may be said to differ slightly from the principles as summarized in C.B., I am bound by C.B. But I accept the authors’ proposition that the analysis required for the admission of electronic evidence will vary, depending upon the purpose for which the evidence is introduced. The analysis required for the admission of data about the data stored on a device, such as timestamps and creation dates in relation to a video, may well be different than for the admission of the video itself.

[53] In this case no issues were raised in relation to the authenticity of the videos themselves. It appears they went in on consent, subject to their adoption in accordance with the requirements of s. 715.1 and one other argument not related to the authenticity or threshold reliability of the videos. There is no indication in the record that counsel had jointly turned their minds to the authenticity or threshold reliability of the timestamp metadata. Consequently, I reject the submission that admission of the videos to prove what the children said had the effect of rendering the timestamps in the metadata admissible as real evidence without further proof.

[54] For these reasons, I am not persuaded that the trial judge failed to give proper effect to the timestamp evidence. She took that evidence into account and considered it to the extent warranted on the record before her.

[55] However, even if I am incorrect in my conclusion that the timestamp evidence was not admissible as real evidence, I would nonetheless dismiss this ground of appeal on the basis that I do not accept the appellant’s submission that the misapprehension alleged renders the verdict unreasonable or undermines an essential basis for the trial judge’s decision leading to a miscarriage of justice.

[56] I will focus on the miscarriage of justice issue first. Although my comments in relation to the miscarriage of justice issue are also relevant to the unreasonable verdict submission, I will deal with the unreasonable verdict submission later, after I have considered the second misapprehension of evidence and other errors alleged by the appellant.

[57] There are essentially two reasons for my conclusion that the alleged error does not undermine an essential basis for the trial judge’s decision, which are related.

[58] First, the appellant’s submission that the misapprehension goes to the core of the trial judge’s decision is tied to the regular teacher’s break being between 1:00 and 2:00 p.m. The submission is that, if the videos were taken at 3:12, 3:13 and 4:10 p.m. as the timestamps indicate, Ms. Achour’s evidence that she acted expeditiously, which was accepted by the trial judge and played an important part in her decision, is undermined. This submission assumes that the break ended at 2:00 p.m. I observe, however that the effect of Ms. Achour’s evidence was that the break was usually from 1:00 to 2:00 p.m. but that she was uncertain of the time the break occurred that day. She said a break is given in the afternoon. The trial judge did not find as a fact that the break was from 1:00 to 2:00 p.m. Rather, she highlighted that Ms. Achour always said that she was uncertain when the break was. I agree with the respondent’s submission that the beginning of the relevant timeline was never established. This considerably diminishes the impact of the timestamp evidence.

[59] What the trial judge emphasized in her reasons was that she accepted Ms. Achour’s assertions that she did not waste any time in investigating the incident once she learned of it. That factual finding was open to the trial judge and well supported by the evidence. It was a reasonable finding. Ms. Achour said that she did not know the times when she made the videos but did know that she acted expeditiously after she learned of the incident.

[60] Second, and related to the last point, the appellant’s submission is also tied to the assumption that M.B. and T.T.’s accounts were rendered unreliable by taint or collusion if the videos were not recorded until the times found in the metadata. However, it is speculative to assume the children talked amongst themselves about what happened prior to Ms. Achour coming to the classroom and asking them about the incident. It is also speculative to assume that, if there was some delay by Ms. Achour, the children continued to discuss what occurred in a manner which tainted their evidence. At its highest, even assuming there was some delay before the first interviews were recorded, there was an opportunity for tainting or collusion. As the respondent submits, and I agree, the possibility of collusion or tainting does not equate with it having occurred. There was no evidence of that.

[61] Moreover, the trial judge considered the issue of tainting and collusion throughout her reasons and found none. Again, this is a factual finding that was open to the trial judge and supported by the evidence. T.T. said the children did not have time to talk amongst themselves. M.B. said he did not recall them discussing what occurred. J.M. was never specifically asked about whether the children talked amongst themselves.

[62] In relation to the miscarriage of justice issue I would draw a parallel between the circumstances in this case and those in R. v. Smith, 2021 SCC 16. In Smith the trial judge failed to deal properly with a prior inconsistent statement. At para. 2, the court held that while inconsistencies may be relevant to assessing a witness’s credibility and reliability, only some will meet the stringent standard required to demonstrate that a misapprehension of evidence has caused a miscarriage of justice. The same may be said in relation to a trial judge’s failure to give effect to an item of evidence.

[63] For these reasons, even if the trial judge misapprehended the timestamp evidence, I would reject that there was a miscarriage of justice.

Errors Alleged in Relation to s. 43 of the Criminal Code

[64] The appellant submits that the trial judge misapprehended the evidence by failing to give proper effect to R.B.’s evidence. The appellant further submits that the trial judge made errors, characterized as errors of mixed fact and law, when considering s. 43 of the Criminal Code.

[65] I am unable to accept these submissions. I will deal with them in the order they were presented.

Did the Trial Judge Misapprehend R.B.’s evidence?

[66] The appellant points to the evidence that on two occasions R.B. demonstrated that the force the appellant applied during the incident was to the shoulders and not the neck. This is inconsistent with the testimony of the other children. The appellant submits that the trial judge “looked past” this inconsistency when she held that R.B.’s evidence “corroborated the occurrence of the event as a whole”. In oral submissions counsel for the appellant contended that the trial judge found R.B. to be a reliable witness, as shown by her use of his evidence as corroborating, but unreasonably ignored the one part of R.B.’s evidence which supported a defence under s. 43 of the Criminal Code.

[67] I do not accept these submissions. The trial judge’s reasons reviewing R.B.’s evidence and setting out her findings of fact occupy over three pages of transcript. She found that R.B. was recalling the incident in question but was misremembering parts of it. The trial judge noted that R.B. recalled that he and some other boys were throwing a toy around and did not listen to the appellant when she told them to stop. R.B. said the appellant became angry and grabbed one of the boys on the shoulders near the neck. These were the aspects of the evidence the trial judge relied upon to find that R.B.’s testimony fortified her conclusion that the appellant grabbed T.T. by the throat out of anger. It is clear from the trial judge’s reasons that she was referring to the surrounding circumstances described by R.B. as generally confirmatory of T.T.’s evidence.

[68] However, the trial judge found that R.B. was less reliable when it came to the details of how the boy was grabbed. R.B. was confused about which boys were involved and which boy was grabbed. Initially his recollection was that it was Lucas. Later he said it may have been T.T. The trial judge noted that R.B. was unsure of his vantage point. I observe that in cross-examination R.B. agreed that he was not in a good position to see the grabbing.

[69] The trial judge’s reasons reveal that she accepted some but not all of R.B.’s evidence, as she was entitled to do. Her reasons reflect that she made findings of fact which were reasonable and well supported by the evidence. The trial judge did not look past or fail to give effect to R.B.’s evidence that the touching was on the shoulders. Rather, she considered that part of his evidence in the context of the other evidence and found it to be unreliable and that it did not raise a reasonable doubt. Yet she found that his general recollection of the unusual event and that it made the appellant angry, was both credible and reliable.

[70] In her factum the appellant also submits that the trial judge failed to take into account the medical report showing that T.T. had no injury, as evidence which supported a finding that it was more likely the touching was to the shoulders rather than the neck.

[71] This submission overlooks that earlier in her reasons, when dealing with the credibility and reliability of T.T.’s evidence, the trial judge considered the absence of any marks or lasting injury to T.T. and found that that, considered alone or with “any other evidence”, did not raise a doubt about what happened. “Any other evidence” obviously included R.B.’s evidence. I observe that this finding was also open to the trial judge, reasonable and well supported. T.T. said his throat was held for only about three seconds. It hurt and he could not breath, but he did not claim he was injured. There was evidence that T.T. and the other children were laughing afterwards. I also observe that the medical examination took place several hours later.

[72] In my view, what is submitted to be an indication of a failure to give effect to R.B.’s evidence is really an example of the trial judge making findings of fact which are entitled to deference.

[73] This aspect of the appeal fails.

Did the Trial Judge Make Other Errors in Considering s. 43 of the Criminal Code?

[74] The appellant alleges additional errors which all relate to the following paragraphs near the conclusion of the trial judge’s reasons:

As a final point, I make reference to Section 43 of the Code. At the end of defence counsel’s submissions, [defence counsel] submitted, in the alternative, that if I find there was an application of force, I should have a doubt about whether it was a corrective measure.

In my view, assessing all the evidence, I find there’s no basis to this defence. First off, the defendant, in her denial to her superior and to [T.T.’s] mother, denied an assault.

I would have to contort bits and pieces of evidence from various witnesses to artificially contrive a factual scenario that would give an air of reality to it.

In the end, however, assuming there is an air of reality to the defence, on the facts, as I have found, Ms. Mbuende’s application of force was out of anger and frustration and not intended for educative or corrective purposes.

[75] Initially, s. 43 of the Criminal Code formed no part of the defence advanced at trial, which was a complete denial. Section 43 first arose when the trial judge asked defence counsel in closing submissions whether she could find that the appellant applied force to T.T. but did not choke him. The appellant’s trial counsel argued against such a finding, saying that the defence position was that the appellant did not touch T.T. Defence counsel said she did not see how the trial judge could make such a finding on the evidence and indicated that she had not intended to raise s. 43, but submitted that if the trial judge were to make such a finding, s. 43 was available and the appellant should be acquitted on that basis.

[76] Section 43 of the Criminal Code reads as follows:

Every school teacher, parent or person standing in the place of a parent is justified in using force by way of correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.

[77] The appellant’s first submission is that in the second paragraph of the excerpt of the trial judge’s reasons quoted above, the trial judge reversed the burden of proof in relation to s. 43 when she took the appellant’s denial of the assault into account to find there was no basis for the defence. I do not accept this submission.

[78] First, it is apparent that at that point in her reasons the trial judge was referring to whether there was an air of reality to the s. 43 defence, and not to the ultimate burden of proof. Reading this paragraph with the next following paragraph makes that clear. When considering whether there was an air of reality to the defence, which is a prerequisite to the consideration of the defence, the appellant’s statements denying the assault were a relevant consideration, although not determinative: R. v. Cinous, 2002 SCC 29, at paras. 49, 51; R. v. A.D.H., 2015 ONCA 690, at para. 9; R. v. Flavian, 2013 ABCA 219, at paras. 46-47, aff’d 2014 SCC 14.

[79] Second, I agree with the respondent’s submission that towards the beginning of her judgment the trial judge gave an exemplary description of the correct onus and burden of proof. The trial judge’s reasons demonstrate that she applied the correct onus and burden of proof throughout her deliberations.

[80] There is no merit in the submission that the trial judge reversed the burden of proof.

[81] In the third paragraph of the excerpt of her reasons, the trial judge found that she would have to contort bits and pieces of the evidence to give the s. 43 defence an air of reality. The appellant next submits that this is an error as the trial judge failed to take into account that the entire context in which the force was applied, a daycare assistant trying to gain control over an unruly group of children who were not listening to her, was sufficient to raise the defence.

[82] Here I think the appellant may well be correct. Whether there is an air of reality to a defence in cases where there are statements or testimony from an accused which are inconsistent with that defence can raise difficult questions. The particular facts and circumstances of the case will be important. I recently had occasion to deal with this issue and review some of the relevant cases in R. v. Edowen, 2021 ONSC 2157, which I brought to counsel’s attention during the appeal.

[83] While the trial judge expressed the view that there was no air of reality to the defence, she recognized that the matter was not free from doubt, because she then went on to briefly consider the defence on its merits. It is not surprising that she did not undertake a lengthy analysis of s. 43, given that the appellant had not advanced the defence and made submissions against the factual underpinnings to support it.

[84] In the last paragraph of the excerpt from the trial judge’s reasons she concluded that the defence was not available on the facts she found because the appellant acted out of anger and frustration and without corrective purpose. The appellant’s final submission is that the trial judge applied an incorrect legal test in reaching this conclusion.

[85] Counsel submits that corrective action cannot be considered unreasonable solely because it was accompanied by a degree of anger and frustration. An application of force motivated partly out of anger or frustration may still be for a corrective purpose, if the force did not exceed what was reasonable in the circumstances. Counsel cites the following cases in support of his submission: R. v P.M., 2021 NSPC 11, at paras. 120, 121; R. v. Bell, [2001] O.J. No. 1820 (S.C.J.); R. v. Hume, 2020 ONCJ 619, at para. 79; R. v. Irvine, [2003] O.J. No. 5940, at para. 23. The appellant submits that the trial judge’s cursory reasons regarding s. 43 indicate that she did not consider the permissible overlap between the accused’s emotional state and the use of corrective force.

[86] Again, I disagree. I have already commented on why it is not surprising that the trial judge’s reasons with respect to s. 43, per se, were brief. However, her reasons in relation to the findings of fact she made were not, and she referenced those findings in the final paragraph of the excerpt when dealing with s. 43. She had previously found that the appellant became frustrated, “lost her cool” and grabbed T.T. by the throat with both her hands in a choking manner. The trial judge’s findings are inconsistent with any overlap between anger or frustration and the use of reasonable corrective force. She found that the appellant acted “out of” anger and frustration, not that the appellant was acting for a corrective purpose while also angry and frustrated.

[87] In Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), 2004 SCC 4, at para. 24, the court held in relation to s. 43: “First, the person applying the force must have intended it to be for educative or corrective purposes … Accordingly, s. 43 cannot exculpate outbursts of violence against a child motived by anger or animated by frustration.” Applying these principles to the trial judge’s findings of fact, it is apparent that the trial judge made no error in rejecting s. 43 as a justification for the appellant’s use of force.

The Unreasonable Verdict Submission

[88] The appellant’s unreasonable verdict submission is tied to the success of the appellant’s contentions of error which have been rejected above. Consequently, it cannot succeed as presented. However, for completeness, I wish to briefly address the unreasonable verdict submission on the basis that the timeline evidence ought to have been treated as real evidence. Even in those circumstances I conclude the unreasonable verdict submission must fail.

[89] In R. v. Li, 2013 ONCA 81, at paras 122 – 123, Watt J.A. explained that there are two ways in which a verdict may be unreasonable:

[122] A verdict may be unreasonable in either of two senses.

[123] A verdict may be unreasonable because it is a decision that no properly instructed jury, acting judicially, could reasonably have rendered: R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at paras. 4 and 44; R. v. Biniaris, 2000 SCC 15, [2001] S.C.R. 381, at para. 36; R. v. Jackson, 2007 SCC 52, [2007] 3 S.C.R. 514, at para. 2. Illogical or irrational reasoning can also render verdicts unreasonable. In this sense, a verdict is unreasonable where the trial judge draws an inference or makes a finding that is:

i. plainly contradicted by the very evidence from which it is drawn or upon which it has been made to rest; or

ii. demonstrably incompatible with evidence that is neither contradicted by other evidence nor rejected by the trial judge.

See Sinclair, at paras. 19 and 21; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at paras. 97-98.

[90] A court considering whether a verdict is unreasonable must go beyond asking whether there is evidence to support the verdict. While the appellate court does not substitute its view for that of the original fact finder, the court must re-examine and to some degree consider the effect of the evidence: R. v. Yebes, [1987] 1 S.C.R. 168, 36 C.C.C. (3d) 417; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381. However, the question is whether the verdict is reasonable, not whether it is justified: R. v. Corbett, [1975] 2 S.C.R. 275, at p. 282; R. v. Chacon-Perez, 2022 ONCA 3, at para. 73.

[91] When the verdict of a judge sitting alone is challenged as unreasonable attention will be placed on the trial judge’s reasons because an error in a judge’s reasons “can sometimes explain an unreasonable conclusion reached by the judge”: R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190, at para 58. However, the test is the same whether the verdict challenged as unreasonable is that of a jury or judge sitting alone. As noted by Charron J. in Beaudry at para. 58: “In every case, it is the conclusion that is reviewed, not the process followed to reach it.”

[92] Earlier I rejected the submission that the error alleged in relation to the timestamp evidence was so centrally involved in the trial judge’s reasoning process that it gave rise to a miscarriage of justice. I pointed out that the commencement of the relevant timeline for evaluating the significance of the timestamp evidence was not established and that there was no evidence that collusion or tainting occurred. These considerations also impact the analysis when considering whether the verdict is unreasonable while assuming that the timestamp evidence ought to have been treated as real evidence rather than in the way in which it was considered. Reviewing the record with that change in mind, I conclude that the verdict remains a reasonable one. Against the background of the other uncertainties concerning the timeline and the lack of any evidence of actual collusion or tainting, a properly instructed jury acting judicially could reasonably have reached the verdict the trial judge did.

[93] The same factors impact the second basis on which a verdict may become unreasonable. Treating the timestamps as real evidence in the circumstances does not “plainly contradict” the evidence the trial judge relied upon. Ms. Achour was uncertain of times but said she acted promptly. The trial judge accepted her evidence. That finding of fact, which involves an assessment of credibility, is entitled to deference. There was no evidence of actual collusion giving rise to taint. The trial judge’s acceptance of Ms. Achour’s evidence is not demonstrably incompatible with uncontradicted evidence or evidence that was not rejected by the trial judge.

[94] The trial judge’s underlying findings of fact, including her findings of credibility, were open to her and not necessarily incompatible with the timestamp evidence, even if that evidence is assumed to have the status of real evidence. As held in R. v. C.P., 2021 SCC 19, at para. 30: “A Court of Appeal reviewing credibility assessments in order to determine whether a verdict is reasonable cannot interfere with those assessments unless they cannot be supported on any reasonable view of the evidence” (citations omitted). Giving the timestamp evidence expanded potential effect on the basis that it is real evidence capable of impacting the assessment of Ms. Achour’s evidence, the test in C.P. is not met on this record.

[95] I see no fault in the trial judge’s reasoning process which assists the appellant in establishing that the verdict is unreasonable. Focusing on the verdict itself, and assuming for the sake of the argument that the timestamp evidence should have been given greater sway as real evidence, does not render the verdict unreasonable.

Conclusion

[96] The appeal is dismissed.

F. Dawson J. Released: February 23, 2022