R. v. Vader (T.E.)

• Jurisdiction: Alberta
• Court: Court of Queen's Bench of Alberta (Canada)
• Judge: Thomas, J.
• Citation: [2016] A.R. TBEd. JN.032,2016 ABQB 287
• Date: 06 May 2016

R. v. Vader (T.E.), [2016] A.R. TBEd. JN.032

MLB being edited

Currently being edited for A.R. - judgment temporarily in rough form.

Temp. Cite: [2016] A.R. TBEd. JN.032

Her Majesty the Queen (Crown/applicant) v. Travis Edward Vader (accused/respondent)

(130781800Q1; 2016 ABQB 287)

Indexed As: R. v. Vader (T.E.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Thomas, J.

May 12, 2016.

Summary:

The accused was charged with two counts of first degree murder. The Crown had applied to admit into evidence data having to do with several cell devices associated to a variety of witnesses and to the accused. The defence brought an application for exclusion in respect to admission of the text messages for the truth of their contents. The defence argued that the text message content was classic hearsay and the texts were not admissible under any exception to the hearsay rule. The defence took the position that the text message content information should be excluded as non-admissible because the source of the communication was not authenticated.

The Alberta Court of Queen's Bench agreed with the Crown that the text message telecommunication record was admissible under the Canada Evidence Act, s. 30 exception. There was no real dispute that the Telus text message record data was accurate and reliable because of the automated manner in which that data was generated, collected and stored. However, if the Telus text message record data was to have probative value then that telecommunications data had to be linked to other information such as forensic data on the cell phones, telephone contracts and subscription purchase information, and evidence from persons who physically interacted with those phones. The court found that the evidence established a connection between the accused and the cell phones that were the source of the disputed text messages. The court concluded that "the disputed text messages are potentially relevant evidence and are admitted on that basis. Their ultimate weight, and admission under the general rule that evidence can only be considered if its probative value exceeds its prejudicial effect, will be determined at the end of the trial."

Criminal Law - Topic 5383

Evidence and witnesses - Documents and reports - Telephone records (incl. text messages) - See paragraphs 8 to 21.

Evidence - Topic 1504

Hearsay rule - General principles and definitions - What constitutes hearsay - See paragraphs 8 to 21.

Counsel:

Ashley Finlayson, Q.C. and Eman Joumaa (Crown Prosecutors - Specialized Prosecutions Branch), for the Crown/applicant;

Nathan Whitling (Beresh Cunningham Aloneissi O'Neill Hurley), for the accused/respondent.

This application was heard on May 6, 2016, before Thomas, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton. Thomas, J., delivered the following decision orally on May 12, 2016, and in writing on June 7, 2016.