R. v. Soh (G.N.), (2014) 416 N.B.R.(2d) 328 (TD)

Judge:LaVigne, J.
Court:Court of Queen's Bench of New Brunswick
Case Date:January 09, 2014
Jurisdiction:New Brunswick
Citations:(2014), 416 N.B.R.(2d) 328 (TD);2014 NBQB 20
 
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R. v. Soh (G.N.) (2014), 416 N.B.R.(2d) 328 (TD);

    416 R.N.-B.(2e) 328; 1079 A.P.R. 328

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2014] N.B.R.(2d) TBEd. FE.044

Renvoi temp.: [2014] N.B.R.(2d) TBEd. FE.044

Her Majesty the Queen v. Galuce Nde Soh

(F/CR/5/2013; 2014 NBQB 20; 2014 NBBR 20)

Indexed As: R. v. Soh (G.N.)

Répertorié: R. v. Soh (G.N.)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

LaVigne, J.

January 13, 2014.

Summary:

Résumé:

The accused was charged with sexual assault. The complainant claimed that she had an online conversation with the accused on Facebook the day after the alleged offence. At issue was the admissibility of six photos of the complainant's computer screen showing the conversations as well as the printouts of five screen captures from the complainant's computer on which the conversation could be read.

The New Brunswick Court of Queen's Bench, Trial Division, admitted the printouts of the screen captures into evidence as electronic documents as defined in s. 31.8 of the Canada Evidence Act.

Editor's Note: For a related decision, see (2014), 416 N.B.R.(2d) 295; 1079 A.P.R. 295.

Criminal Law - Topic 5258

Evidence and witnesses - Admissions - Based on hearsay - [See Evidence - Topic 1527 ].

Criminal Law - Topic 5260

Evidence and witnesses - Admissions - Documents containing admissions - [See Evidence - Topic 1527 ].

Criminal Law - Topic 5264

Evidence and witnesses - Admissions - Admissibility - [See Evidence - Topic 1527 ].

Evidence - Topic 950

Real or demonstrative evidence - General - The accused was charged with sexual assault - The complainant claimed that she had an online conversation with the accused on Facebook the day after the alleged offence - At issue was the admissibility of six photos of the complainant's computer screen showing the conversations as well as the printouts of five screen captures from the complainant's computer on which the conversation could be read - The New Brunswick Court of Queen's Bench, Trial Division, admitted the printouts of the screen captures into evidence as electronic documents as defined in s. 31.8 of the Canada Evidence Act - As there was no longer any use for the photos, the court addressed them only briefly, rejecting the Crown's position that they were admissible as real evidence - Considering that the photos were presented as evidence of their content and that the content was an out-of-court statement given by someone in electronic format, the photos would be subject to the provisions which governed authentication, best evidence and integrity set out in ss. 31.1 to 31.8 of the Act as well as to the rules that applied to the admissibility of hearsay evidence - The photos would lose their relevance if they could not be used to establish the veracity of the information they contained - See paragraphs 31 and 32.

Evidence - Topic 1504

Hearsay rule - General principles and definitions - What constitutes hearsay - [See Evidence - Topic 950 ].

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - General - Where admission of hearsay necessary and evidence reliable - The accused was charged with sexual assault - The complainant claimed that she had an online conversation with the accused on Facebook the day after the alleged offence - At issue was the admissibility of the printouts of five screen captures from the complainant's computer on which the conversation could be read - The New Brunswick Court of Queen's Bench, Trial Division, admitted the printouts of the screen captures as electronic documents as defined in s. 31.8 of the Canada Evidence Act - The screen captures constituted hearsay evidence that was admissible under the traditional exception to the hearsay rule since the evidence contained admissions by the accused - The evidence satisfied the necessity and reliability requirements - It was necessary given that the accused could not be compelled to testify - It was reliable because it provided a circumstantial guarantee of trustworthiness - In his statement, the accused alleged that he did not know that the complainant had not consented to physical contact - In fact, he claimed that he sincerely believed that she had consented to the sexual activity - The probative value of the evidence outweighed its prejudicial effect - See paragraphs 41 to 52.

Evidence - Topic 1761

Hearsay rule - Hearsay rule exceptions and exclusions - Admissions - General - [See Evidence - Topic 1527 ].

Evidence - Topic 3004

Documentary evidence - General - Best evidence rule - [See third Evidence - Topic 3017 ].

Evidence - Topic 3017

Documentary evidence - General - Electronic documents - [See Evidence - Topic 950 ].

Evidence - Topic 3017

Documentary evidence - General - Electronic documents - The accused was charged with sexual assault - The complainant claimed that she had an online conversation with the accused on Facebook the day after the alleged offence - At issue was the admissibility of the printouts of five screen captures from the complainant's computer on which the conversation could be read - The New Brunswick Court of Queen's Bench, Trial Division, held that the printouts of the screen captures were electronic documents as defined in s. 31.8 of the Canada Evidence Act - "Electronic document", as defined in the Act, referred to any document in electronic format - That included emails, all computer files, metadata connected to these files, browsing history, content posted online on web forums such as Twitter and Facebook, text messages, online chatting, etc., as well as any hard copy of this data - Given that the Act contained provisions that applied specifically to electronic documents (ss. 31.1 to 31.8), it would be surprising if those provisions did not apply to a Facebook conversation - See paragraphs 20 and 21.

Evidence - Topic 3017

Documentary evidence - General - Electronic documents - The accused was charged with sexual assault - The complainant claimed that she had an online conversation with the accused on Facebook the day after the alleged offence - At issue was the admissibility of six photos of the complainant's computer screen showing the conversations as well as the printouts of five screen captures from the complainant's computer on which the conversation could be read - The New Brunswick Court of Queen's Bench, Trial Division, admitted the printouts of the screen captures into evidence as electronic documents as defined in s. 31.8 of the Canada Evidence Act - As with any other documentary evidence, electronic evidence had to be authenticated - Under ss. 31.1 to 31.3, the admissibility of an electronic document depended on its authenticity and reliability, which could be demonstrated on proof of the integrity of the electronic document system, rather than on that of the specific electronic document - There was a presumption of integrity if, inter alia, the electronic system was shown to be operating properly - The Crown bore the burden of proving authenticity by providing evidence capable of supporting a finding that the document was what it was purported to be - Here, the court was satisfied that the electronic document was not modified in any way and that the printouts were a faithful reproduction of the electronic conversation - The electronic system was operating properly - No evidence to the contrary was presented - The printouts of the screen captures satisfied the best evidence rule - See paragraphs 22 to 30.

Droit criminel - Cote 5258

Preuve et témoins - Aveux - Aveux fondés sur le ouï-dire - [Voir Criminal Law - Topic 5258 ].

Droit criminel - Cote 5260

Preuve et témoins - Aveux - Document contenant des aveux - [Voir Criminal Law - Topic 5260 ].

Droit criminel - Cote 5264

Preuve et témoins - Aveux - Admissibilité - [Voir Criminal Law - Topic 5264 ].

Preuve - Cote 950

Preuve matérielle - Généralités - [Voir Evidence - Topic 950 ].

Preuve - Cote 1504

Règle du ouï-dire - Principes généraux et définitions - Ouï-dire - En quoi consiste - [Voir Evidence - Topic 1504 ].

Preuve - Cote 1527

Règle du ouï-dire - Exceptions et exclusions - Nécessité de l'admission du ouï-dire et fiabilité de la preuve - [Voir Evidence - Topic 1527 ].

Preuve - Cote 1761

Règle du ouï-dire - Exceptions et exclusions - Admissions - Généralitiés - [Voir Evidence - Topic 1761 ].

Preuve - Cote 3004

Preuve documentaire - Généralitiés - Règle de la meilleure preuve - [Voir Evidence - Topic 3004 ].

Preuve - Cote 3017

Preuve documentaire - Généralitiés - Documents électroniques - [Voir Evidence - Topic 3017 ].

Cases Noticed:

R. v. Evans (C.D.), [1993] 3 S.C.R. 653; 158 N.R. 278; 145 A.R. 81; 55 W.A.C. 81, refd to. [para. 34].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [para. 42].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 43].

R. v. Simpson (C.), (2007), 231 O.A.C. 19; 2007 ONCA 793, refd to. [para. 44].

R. v. Mapara (S.) et al., [2005] 1 S.C.R. 358; 332 N.R. 244; 211 B.C.A.C. 1; 349 W.A.C. 1; 195 C.C.C.(3d) 225; 2005 SCC 23, refd to. [para. 45].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 31.1, sect. 31.2, sect. 31.3 [para. 24]; sect. 31.8 [para. 20].

Counsel:

Avocats:

Claude Haché, for the Crown;

Sylvain Pelletier, for Galuce Nde Soh.

This voir dire was heard on January 9, 2014, by LaVigne, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, who delivered the following oral decision in both official languages on January 13, 2014.

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