Presumption of integrity created for electronic documents system

Evidence – Real evidence – Best evidence rule

Police executed search warrant at rural residence, accused answered door when police arrived and he acknowledged to police that he had oxycodone pills in book bag and bag of marijuana on table in living room, and police found ounce of cocaine in small safe and 50 marijuana plants. At trial, Crown relied heavily on evidence relating to data extracted from Samsung cell phone found in basement of residence, and evidence from cell phone was used to support inferences that cell phone belonged to accused’s son, that they lived in same residence and that they were jointly involved in trafficking of marijuana and cocaine. Evidence included email address used by Samsung cell phone, which mirrored son’s forename, telephone number of contact identified as “dad” and number assigned to Samsung phone and Crown also relied on evidence from officer-in-charge to support inferences that accused and son were father and son and that “dad” was accused. Trial judge requested and received written submissions regarding admissibility of data extracted from Samsung phone and ultimately ruled that evidence met “best evidence rule” admissibility requirement and found text messages admissible as statements. Trial judge convicted accused of possession of cocaine for purpose of trafficking, possession of oxycodone, production of marijuana, and possession of marijuana for purpose of trafficking. Majority of Court of Appeal dismissed accused's conviction appeal . Crown conceded that trial judge erred in relying on s. 31.3(b) of Canada Evidence Act to hold that data extracted from Samsung cell phone met best evidence rule admissibility requirement. However, data satisfied that requirement under s. 31.3(a) of Act, which created presumption of integrity for electronic documents system arising from storage of electronic document on properly operating electronic documents system. Majority found that no substantial wrong or miscarriage of justice arose from this error, because it was trivial in these circumstances. Accused appealed. Appeal dismissed. Evidence adduced by Crown after re-opening was essentially confirmatory of evidence that had already been adduced by Crown showing that accused had constructive possession of drugs in question.

R. v. S.H. (2020), 2020 CarswellOnt 2380, 2020 CarswellOnt 2381, 2020 SCC 3, 2020 CSC 3, Abella J., Moldaver J., Côté J., Brown J., and Martin J. (S.C.C.); affirmed (2019), 2019 CarswellOnt 14110, 2019 ONCA 669, Janet Simmons J.A., M. Tulloch J.A., and David Brown J.A. (Ont. C.A.).

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