Court File and Parties
Date: 2024-07-18 Ontario Superior Court of Justice
Between: His Majesty the King – and – M.C., Respondent
Counsel: Z. Sethna, for the Crown D. Lerner, for the Respondent
Heard: July 15 and 16, 2024
Reasons on Application
J.R. McCarthy J.
[1] The Crown makes an application for a ruling on the admissibility into evidence for trial of a series of “Textnow” messages (“the messages”) exchanged between Detective Constable Cober (“DCC”) of the York Regional Police (“YRP”) and the Respondent/Accused’s iPhone number 519 870-4285 (“the Respondent’s phone”).
Background
[2] The Respondent is charged with child luring under s.172.1(1) of the Criminal Code.
[3] As part of a concerted police investigation named Project Rafael, which looked to target customers who were willing to pay to have sex with underaged persons, DCC posted two ads for escort services on a website called backpage.com on January 18 and 19, 2018. The ads indicated that the sex trade worker offering services was 18 years of age. Upon being contacted by the Respondent’s phone on January 18 at approximately 9:28pm, DCC used the Textnow App to initiate a series of messages from a YRP cell phone (DCC’s phone) the overall purpose of which was to arrange a meet up between the person DCC was purporting to be and the person operating the Respondent’s phone. Early in the message exchange, DCC advised the operator of the Respondent’s phone that “she” was 14 years old.
[4] Between January 18 and 26, 2018 the Respondent had exclusive use of the Respondent’s phone. At 6pm on January 26, 2018, the Respondent drove his truck into a parking lot at St John’s Sideroad and Bayview Avenue in Aurora. Once there, he proceeded to buy Belmont cigarettes at a nearby convenience store. Shortly thereafter, he was arrested and found in possession of the Respondent’s phone. A text call to the Respondent’s phone revealed that it belonged to the same number engaged in the message exchange with DCC. A search of the truck also revealed $180 cash in $20 denominations and a box of Trojan condoms in the back seat. The Respondent is not a smoker and was not a smoker on the day of his arrest.
[5] The messages were exported and extracted from DCC’s phone and generated into a report by OPP computer forensic technician Blair McQuillan (the Text Now extraction report).
The Position of the Parties
[6] The Crown submits that the admissibility of the messages should be allowed under either Section 31 of the Canada Evidence Act (CEA) or as a hearsay exception as an admission. The threshold for admissibility for this type of evidence is low. Any deficiencies or inconsistencies in the downloaded messages should go to weight and not to their admissibility. The circumstantial evidence in the case serves to greatly enhance the reliability of these electronic documents. The extraction report accurately and reliably reproduced the messages exchanged between DCC and the Respondent’s phone. DCC has an independent recollection of sending and receiving the messages.
[7] The thrust of the Respondent’s position is that the messages cannot be admitted under the provisions of the CEA or under the common law exception to hearsay. The Crown has not satisfied its burden under the best evidence test; the notable inconsistencies in what has been extracted and uploaded makes the evidence unreliable and inadmissible. Expert evidence was required to establish the integrity of the electronic documents system in which the electronic documents were stored or recorded. The Crown adduced no evidence of how the Textnow application works or functions and the court should decline to make any finding on the integrity of that system without sufficient evidence.
The Messages
[8] The messages themselves contain highly probative evidence in respect of the charges in question. DCC held himself out as a sex trade worker offering half hour and hourly services. The person on the Respondent’s phone was obviously an interested and willing customer. As the exchange unfolded, DCC portrayed himself to be not just a sex trade worker, but one who was 14 years old. The person on the Respondent’s phone clearly received and acknowledged that information and indicated a willingness to hire the sexual services notwithstanding. This evidence might tend to support a finding that the Respondent by means of telecommunication, communicated with a person who the Respondent believed was under 18 for the purposes of committing an offence under one of sections delineated in s. 172(1) of the CC. It is therefore relevant to and probative of an essential element of the alleged offence.
The Circumstantial Evidence
[9] There was significant and compelling circumstantial evidence of what transpired during and after the messaging period. The Respondent had exclusive use of the Respondent’s phone; the Respondent attended at the location where and at the time when the meet up had been arranged; upon arrest, the Respondent was found to be in possession of the Respondent’s phone; a text call made to that phone confirmed that it was the Respondent’s phone; the Respondent was a white male operating a truck, both facts which had been divulged in the messages; a package of Belmont cigarettes requested by the messaging “14 year old” was located in the Respondent’s truck; the Respondent was a non-smoker; there was also a box of condoms and $180 in twenty dollar bills found in the truck.
Viva voce evidence at Application
[10] DCC testified that he exported the block of messages to PDF format and handed them on to be further processed. There is no evidence to suggest that either he or the OPP technician altered or tampered with the block of messages in any way. With one or two exceptions, DCC was confident that the block of messages on the exhibits before the court corresponded with the messages he exchanged with the Respondent’s phone during the period in question.
CEA
[11] The messages constitute electronic documents. Under section 31.1 of the CEA, the Crown bears the burden of proof in respect of the authentication of electronic documents. Section 31.2 preserves the best evidence rule in respect of electronic documents and stipulates 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;
(b) if an evidentiary presumption established under section 31.4 applies
[12] Section 31.3 of the CEA reads, in part,
Presumption of Integrity
31.3 For the purpose of the 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.
Discussion
[13] As stated above, I am satisfied that the electronic documents (the messages) are relevant. For the reasons which follow, I am satisfied that the Crown has met its burden to establish the authenticity of the messages.
[14] In R. v. C.B., 2019 ONCA 392, 2019 O.J. No. 2424, Justice Watt, writing for the Ontario Court of Appeal emphasized the modest threshold for authentication under s. 31.1 of the CEA at paras 67 and 68:
For electronic documents, s. 31.1 of the CEA 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…..under s. 31.1, as at common law, the threshold to be met is low. When that threshold is satisfied, the electronic document is admissible, and thus available for use by the trier of fact….to satisfy this modest threshold for authentication…..the proponent may adduce and rely upon direct and circumstantial evidence.
[15] I am drawn to the reasoning offered by my sister Baltman J who, in R. v. C.L., [2017] OJ No. 3779 relied on an off cited text by David M. Paciocco (as he then was) entitled “Proof and Progress: Coping with the Law of Evidence in a Technological Age” (2013), 11 CJLT 181 to conclude that the best evidence rules are not rocket science. The primary role of the best evidence provisions of the CEA is an adjunct to authenticity; they assure the court that the document submitted is the same as the one that was input into the computer.
[16] This makes eminent good sense. And it makes eminent good sense that direct or circumstantial evidence may prove, on the balance of probabilities, that the electronic record in question is an accurate reproduction of the document stored on the device in question.
[17] I place weight on the evidence of DCC that what he exported to the PDF were text messages exchanged between DCC and the Respondent’s phone. He retained an independent memory of the messages being sent and received. This constitutes reliable evidence that the system he was using was functioning properly. DCC was sending and receiving text messages in much the same manner as, dare I say, millions of ordinary persons in this province do on a daily, even hourly basis.
[18] The circumstantial evidence is highly corroborative of the authenticity of those electronic documents: the messages were exchanged between individuals looking to arrange for a meet up for paid sexual services to be provided. The meet up arranged through messaging on the subject devices took place. The messaging persons arrived at the agreed upon location at the agreed upon time. The person messaging from the Respondent’s phone fit the profile he had provided and just happened to be in possession of not only the messaging phone (of which he had exclusive possession during the entire messaging period) but the exact brand of cigarettes requested by the phantom sex worker together with the condoms and cash currency that had been discussed.
[19] This is not a situation which the Ontario Court of Appeal faced when giving its decision in R. v. Aslami, 2021 ONCA 249. In that case, the concerns of the court were articulated by Nordheimer JA at paragraphs 24: “…not only were the TextNow messages obtained in an unusual and not especially reliable way, there was nothing in the content of those messages that objectively established the appellant as the sender”.
[20] At paragraph 25 of Aslami, the court provided this additional guidance:
….trial judges need to be very careful in how they deal with electronic evidence of this type. There are entirely too many ways for an individual, who is of a mind to do so, to make electronic evidence appear to be something other than what it is. Trial judges need to be rigorous in their evaluation of such evidence, when it is presented, both in terms of its reliability and its probative value.
[21] There is no suggestion, and indeed no evidence, that DCC or the OPP technician had a mind to make the electronic evidence in this case appear to be something it was not. There is simply no evidence that the electronic evidence has been manipulated, corrupted, or distorted in anyway.
[22] Most importantly, there is clearly much in the content of the messages that objectively points to the Respondent as the co-participant in the message exchange. Everything from his exclusive use of the Respondent’s phone to his appearance at the pre-arranged meeting location, to the items found on his person and in his truck, constitutes compelling circumstantial evidence in support of the authenticity of the electronic documents in question. It would be an affront to common sense to conclude that the circumstantial evidence here does not overwhelmingly support authenticity.
[23] I note that Aslami does not stand for the proposition that expert evidence is required to establish authenticity of electronic documents. In the case at bar, there is nothing about the content of the messages, the manner in which they were produced, preserved, exported or extracted nor the context or circumstances in which they were exchanged which would require expert evidence to prove authenticity. There are no reasonable grounds to doubt the integrity of the electronic documents system in which these messages were exchanged, exported, and produced.
[24] Finally, to the extent that the extracted messages contain some duplication, some discrepancies, or some uncertainties, this applies to only a handful of them. I am not in any way persuaded that this points to any tampering or that it has any impact on their authenticity. In any event, any such frailties in the electronic documents would go to weight and do not serve to erode their authenticity for the purposes of the low threshold for admissibility.
[25] For the foregoing reasons, the Crown’s application is allowed. The Crown has proven that the text logs and the exported text messages as found in the Textnow extraction report are relevant and authentic and therefore admissible at trial under s. 31.1 of the CEA.
[26] The Crown may introduce those electronic documents, and more specifically exhibits 7, 8 and 9 into evidence at trial.
J.R. McCarthy J.
Delivered Orally: July 18, 2024
NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If any discrepancies between the oral and written versions, it is the official written Ruling that is to be relied upon.