The Authentication and Admissibility of Text Messages in Sexual Assault Criminal Trial – A recent case from the Court of Appeal

Published On: May 21,2019

Sexting and Text Messages in a Criminal Trial
The Authentication and Admissibility of Text Messages in Sexual Assault Criminal Trial – A recent case from the Court of Appeal by J.S. Patel, Barrister

In Regina v. C.B, 2019 ONCA 370, the Ontario Court of Appeal ruled on the issue of authenticating text messages for evidentiary purposes at trial, when the prospect of tampering is raised an issue.  Plainly put, the Court ruled that the Courts should infer that the sender of the message has authored the text message sent from their phone, and the issue of tampering ought to only be considered in the context of the weight to be assigned to the message.


In this case, the convictions for assault, sexual assault, and unlawful confinement where set side, and the Court ordered a new trial where the trial judge did not admit text-message evidence proffered by the defence. There were two (2) co-accused, an adult couple.  The allegations were serious in that the complainant, a sixteen (16) year old, alleged that she was tied up and sexually assaulted under section 271 of the Criminal Code of Canada (the “Code“).  A separate incident was also alleged wherein the accused were alleged to have restrained and sexually assaulted another sixteen (16) year-old girl.


At trial, the defence tendered forensic evidence relating to texts allegedly sent by one of the complainants at the time of the alleged assaults and a photo allegedly on the complainant’s phone. The indexed texts/documents were proffered with a view to contradict the complainant’s account of the events, who had claimed the accused had installed an app on her phone.  The trial judge ruled that the evidence was not admissible because, in the trial court’s view, it had no probative value, and was not authenticated.


The Ontario Court of Appeal held that this was an error because authentication requires a low threshold. What is more, the complainant had testified: (a) the texts were from her number and that she had the phone with her at the relevant times; (b) she explained the meaning of one of the texts; and (c) the content of the texts was consistent with the events in question. The foregoing factors were sufficient to authenticate the messages under the Canada Evidence Act and the Common-Law under section 31.1.


Given this critical error, the Ontario Court of Appeal ruled that the trial Court had misapprehended evidence about the photo.  There was a fresh evidence application that was submitted under Reginav. Palmer, 1979 CanLII 8 (SCC), [1980] 1 S.C.R. 759, at p. 775that was admitted, by the Appeal Court, to the effect that the text messages were authentic.  The representative passage of the Judgement posits:


[136]   As I will explain, I would admit the fresh evidence. In my respectful view, it satisfies the conditions precedent for reception of fresh evidence and should not be excluded for want of due diligence at trial.


[137]   In this case, the fresh evidence extends beyond evidence whose purpose is to impeach findings of fact made at trial. The expert opinion of Marty Musters is tendered for that purpose, but not so the affidavit and cross-examination of C.B.’s trial counsel. Its target is the issue of due diligence whose failure may result in the exclusion of evidence that satisfies the prerequisites for admissibility.


[138]   First, the expert opinion of Marty Musters.


[139]   No dispute arises about the admissibility of the expert opinion of Marty Musters under the operative rules of evidence. He is a qualified forensic examiner whose report would be admissible at the conclusion of the two-step analysis put in place by White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (CanLII), [2015] 2 S.C.R. 182.


[140]   A critical issue at trial on which the outcome depended was the credibility of the complainants and the reliability of their account of non-consensual conduct on the part of both appellants, which the Crown alleged constituted proof of the offences charged. This evidence was vigorously challenged by the defence. Among the methods of challenge was cross-examination of the complainants on contemporaneous text messages (D.P.) and photographs (G.D.), which were said to be at odds with the complainants’ accounts of relevant events. And essential to impeachment on this basis was the authenticity of those text messages and photographs employed in the impeachment process.


[141]   The expert opinion of Marty Musters is relevant to the authenticity of the text messages and photographs used as impeachment mechanisms. His opinion establishes the nexus between the texting partners, D.P. and the appellant C.B., and the contemporaneity and source of the photographs. It tends to show that D.P.’s denial of authorship could be false.


[142]   The respondent takes no issue with the substance of the opinion on authenticity provided by Marty Musters, whom counsel did not cross-examine. I am satisfied that his opinion is reasonably capable of belief.


[143]   The final component of the cogency requirement involves an assessment of whether the opinion evidence, the expert opinion about authenticity, could reasonably be expected to have affected the verdict at trial. In my respectful view, the proposed evidence satisfies this aspect of the cogency requirement.


[144]   At trial, the case for the Crown depended on the evidence of the complainants. For all practical purposes, their testimony was the case for the Crown. To convict, the trial judge had to be satisfied beyond a reasonable doubt that the complainants were credible, their evidence reliable and of such persuasive force that it excluded any reasonable doubt about the appellants’ guilt.


[145]   In reaching his conclusion that the complainants were credible and their testimony reliable to such an extent that it excluded reasonable doubt, the trial judge rejected, as of no probative value, the text messages and photographs on which the complainants were cross-examined. The judge’s finding of “no probative value”, thus the lack of any impeachment value, was grounded on his conclusion that the messages and photographs were not established as authentic or genuine. But casting aside this evidence for want of authenticity, the fresh evidence shows, was wrong. It should have been factored into the credibility/reliability analysis. In the result, I am satisfied that had the expert opinion of Musters been before the trial judge, it could reasonably be expected to have affected the conclusion reached in that analysis, thus the verdict rendered at trial.


[146]   What remains is an assessment of whether the due diligence criterion should mandate exclusion of the evidence of Musters, despite its satisfaction of the conditions precedent to admissibility.


[147]   On this issue of due diligence, the evidence of trial counsel is relevant. Doubtless, trial counsel could have called the appellant C.B. or Musters, or some other forensic examiner, to authenticate the relevant contents of the appellant C.B.’s cellphone. That said, the decision of trial counsel was informed by her view that the record contained sufficient evidence to authenticate the contents put to the complainants. In this respect, trial counsel, as I have already explained, was correct. This was a reasonable conclusion in the circumstances, not a failure of due diligence that warrants exclusion of the expert opinion of Musters.


The Court set aside the convictions to avoid a miscarriage of justice within s. 686(1)(a)(iii) of the Criminal Code, and ordered a new trial.


If you have been charged with or convicted of a criminal offence, call Mr. J.S. Patel, Barrister at 403-585-1960.

 
It should be noted that the Panel of the Court of Appeal directed as follows relative to the re-publication of the content of the decision:   The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue.  These sections of the Criminal Code provide: 486.4(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim 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, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or (ii)      any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or (iii)     REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49). (b)     two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a). (2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a)     at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and (b)     on application made by the victim, the prosecutor or any such witness, make the order. (2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way. (2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall (a) as soon as feasible, inform the victim of their right to make an application for the order; and (b) on application of the victim or the prosecutor, make the order. (3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22,48; 2015, c. 13, s. 18.. 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. (2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.