Saskatchewan Court of Appeal considers multi-pronged attack on admission and consideration of Facebook Messages 

The Saskatchewan Court of Appeal recently reviewed the legal tests to be applied for attributing authorship and authenticating Facebook Messenger messages. The accused/appellant in R v Durocher appealed his finding of guilt for sexual assault and sexual interference with a person under 16, arguing in part that the trial judge had erred in the admission and reliance on Facebook messages put forward as being exchanged between the accused and the complainant. 

As part of the prosecution’s evidence, the complainant testified and referred to a number of Facebook messages. The defence alerted the judge that there may be some objections and that there may be further evidence touching on the messages, the defence did not object and did not call for a voir dire regarding admissibility, reliability or whether the accused was the actual author of the messages attributed to him by the complainant. On appeal, the accused argued that the messages were hearsay and could not be considered unless the judge held a voir dire to determine the question. It was argued that the judge should have done so on his own motion. 

On the question of authorship, the Court of Appeal concluded that it was open to the trial judge to make the conclusion the accused had authored the messages based on the complainant’s testimony and inferences that can be drawn. 

[49] There was no suggestion at trial of tampering or that the sender used an alias. Although the prospect of tampering was discussed in the context of threshold authentication, Watt J.A., in R v C.B., 2019 ONCA 380 (CanLII), 146 OR (3d) 1 [C.B.], was of the view that an inference could be drawn about authorship in the absence of any evidence that gives an air of reality to such a claim:

[72] As a matter of principle, it seems reasonable to infer that the sender has authored a message sent from his or her phone number. This inference is available and should be drawn in the absence of evidence that gives an air of reality to a claim that this may not be so. Rank speculation is not sufficient: R. v. Ambrose, 2015 ONCJ 813 (CanLII), at para. 52.

[50] In my view, the trial judge properly applied the Evans test to determine threshold admissibility. Examining the circumstantial evidence as a whole, it was open to him to draw an inference that Mr. Durocher was the author of the Facebook messages. L.A. provided viva voce testimony and a statement to the police that Mr. Durocher was the person who had sent the Facebook messages to her. She explained the basis for her belief and briefly discussed the content of each message. L.A.’s evidence on this point went in unchallenged.

In considering the threshold of admissibility, the trial judge only needed to be satisfied on the legal standard that the accused made the statements and could rely on circumstantial evidence to do so. Furthermore, a voir dire was not required to consider the question. 

The appellant also challenged the reliability of the messages, which the Court of Appeal found to be rooted in the law related to hearsay. The appellant asserted that the trial judge should have held a voir dire to determine the question, though none was requested at the trial. An out-of-court statement made by a non-testifying declarant “tendered for the truth of its contents” is presumptively inadmissible, subject to specific common law exceptions. 

The Court of Appeal noted that at trial, defence counsel never identified hearsay as a basis for concern or suggest a voir dire was necessary. The defence did make a statement that he “may object” at some point to the Facebook messages during examination. Defence counsel also did not challenge the complaint’s testimony that attributed the messages to the defendant. 

This may have been part of a strategic decision by the defence that ultimately failed: “As commented above, the approach taken by defence counsel at trial was no doubt in furtherance of a strategy that did not succeed, but that alone does not make the trial judge’s approach erroneous.”

Defence counsel chose not to advance this argument at trial, and the trial judge was not faulted for not intervening with Mr. Durocher’s strategy during trial. In this case, Facebook evidence was presumptively admissible without a voir dire. The trial judge did not err by failing to hold a voir dire of his own motion in order to determine the admissibility of the Facebook messages because they were hearsay. 

Further, the appeal judge invoked the curative provision of s. 686(1)(b)(iii) of the Criminal Code. While the trial judge believed that Mr. Durocher sent the messages, but they did not add to the allegation of the specific sexual assault 

[73] … I say this because even though the trial judge was satisfied Mr. Durocher was the author of the messages, he did not give the messages any weight in deciding guilt or innocence. To repeat, he said, “I believe that Mr. Durocher did send messages, but they don’t add to the allegation of the specific sexual assault” (emphasis added). The trial judge’s decision came down to the credibility of L.A. He explained why he found her credible and, in the end, was satisfied beyond a reasonable doubt that Mr. Durocher had committed the offences with which he stood charged.

The appellant also challenged the authenticity of the messages, which requires resort to the Canada Evidence Act (“CEA”) and the common law. Authenticity, to put it simply, refers to whether the document is what it purports to be. The CEA is particularly engaged because the messages are electronic documents:

Authentication of electronic documents

31.1 Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purported to be.

And under the CEA, it is merely a threshold question as the ultimate issue has to be determined at the end of the day with the benefit of all the relevant evidence:

[84] That said, authentication does not necessarily mean the document is genuine: “That is a question of weight for the fact-finder which often turns on determinations of credibility” (citations omitted, Ball at para 70). Evidence can be authenticated even where there is a contest over whether it is what it purports to be. As Professor David Paciocco (as he then was) explained in his article cited above, “Proof and Progress: Coping with the Law of Evidence in a Technological Age” (December 2013) 11 Can J L & Tech 181 [“Proof and Progress”], this is not because the law is interested in false documentation (at 197):

It is simply that the law prefers to see disputes about authenticity resolved at the end of a case, not at the admissibility stage. Disputes over authenticity tend to turn on credibility, and credibility is best judged at the end of the case in the context of all of the evidence. “Authentication” for the purposes of admissibility is therefore nothing more than a threshold test requiring that there be some basis for leaving the evidence to the fact finder for ultimate evaluation. In R. v. Butler, [2009 ABQB 97] 2009 CarswellAlta 1825, [2009] A.J. No. 1242 (Alta. Q.B.), for example, the Court recognized where there was a live issue about whether the accused generated the Facebook entries in question that would be for the jury to decide.

The Court of Appeal also noted that authentication and authorship are two different, but interconnected, questions and each must be resolved. The Court of Appeal, at paragraph 85, quoted from Graham Underwood and Jonathan Penner, Electronic Evidence in Canada, loose-leaf (Rel 1, 2016) vol 1 (Toronto: Thomson Reuters, 2010):

It is also important to note that establishing the authenticity of an electronic document is not necessarily synonymous with demonstrating its authorship. The relationship between authenticity and authorship for electronic documents is not reciprocal; demonstrating authorship is sufficient to establish authenticity, but establishing authenticity of an electronic document does not necessarily provide strong evidence of authorship.

At the end of the day, the burden for authentication is relatively light. Though neither party before the court nor the trial judge referred to the CEA, there was sufficient evidence to establish that authenticity and authorship. The Court of Appeal noted that the complainant testified to the following, all of which was largely unchallenged by the defence: 

(a) she was his Facebook friend;

(b) she described the content of Mr. Durocher’s home page as containing his name in bold and underlined lettering;

(c) the responses to her messages bore her name;

(d) she identified the messages she had sent in response and her responses bore her name;

(e) the messages from the sender contained sexual content with an invitation for sexual activity;

(f) she was able to access the messages from her smart phone;

(g) the sender used the word tatanka that, in the Dakota language, means buffalo;

(h) the messages received by L.A. were contemporaneous with the alleged assaults; and

(i) some of L.A.’s messages, in the chain of messages, were met by a further message from the sender.

Though the Court of Appeal would have preferred that the judge had held a voir dire on this question, the low barrier of section 31.1 of the CEA was easily passed. In paragraph 96, the Court of Appeal noted: 

However, bearing in mind the low bar attached to s. 31.1, the functional approach adopted by the courts with regard to its application, the presumption of integrity under the CEA and the fact the trial judge ultimately found Mr. Durocher was the author of the Facebook messages, I am satisfied that the evidence adduced by the Crown was capable of authenticating the Facebook messages.