But judge crossed the line in assuming only one way to fabricate text message exchange

In R v Lambert, Justice Molloy of the Ontario Superior Court of Justice heard an appeal of a conviction in which a substantial part of the case was determined by judicial notice of how text messaging works.

The accused, Lambert was convicted of uttering threats, criminal harassment and breach of probation for sending text messages to his ex-girlfriend over a 21 day period and going to her place of work. The actual text messages or the phone (or any detailed analysis of either) were not available at the trial. The only evidence the testimony of the ex-girlfriend, NB, and photographs the police had made of her phone showing the text messages in question.

The trial turned on the credibility of the complainant and the identity of the sender of the text messages. If the accused had actually sent the messages, they would be evidence and provide substantial corroboration of the threats and harassment. However, there was nothing independent linking the messages to the accused. By the time NB had called the police, she had deleted three threatening voicemails, and by the time of the trial she no longer had the phone. The messages not been extracted from the phone and the police never examined it beyond taking photos of the screen.

From the appeal decision:

[6] The text messages were exhibits at trial. The messages sent by “Barrii” contained repeated and persistent demands for money allegedly given to N.B. and numerous threats against her. The threats escalated in violence and frequency from May 1 through to May 12, 2016, and included threats to attend at the workplace of N.B.’s daughter, threats to harm N.B., and threats to kill N.B. One such message could reasonably be construed as a threatened murder/suicide. On May 12, in addition to threatening to kill N.B., the sender of these messages said he had a gun. N.B. testified that she decided to go to the police when she received that message.

The defence suggested to NB that she had created the messages herself:

[10] It was suggested to N.B. on cross-examination that she had fabricated the text messages sent to her. Specifically, it was suggested that she: (1) obtained a second phone, which had the number 647-550-7359; (2) put that number in the contacts in her usual phone as “Barrii;” and, (3) fabricated the exchange of messages by sending messages to herself, purportedly from “Barrii,” and then sending replies from her regular phone. N.B. denied that suggestion, maintaining that all of the messages from “Barrii” were, in fact, sent by Mr. Lambert.

The trial judge determined that NB had not created the messages: they appeared natural, they included normal references to other people and events and did not paint the complainant in a good light. If she were to go to the effort to manufacture the text messages, “she would have painted herself in a better light and portrayed herself as being frightened, rather than defiant as she appeared in many of her responses.”

The trial judge also took judicial notice of how text messaging works in order to find that NB likely had not created the messages herself:

[15] The trial judge then rejected the defence argument that the Crown’s case was lacking because no expert was called to explain how text messaging works, stating:

In this day and age, text messaging is ubiquitous and is a method of communication widely used and understood by everyone who uses a cell phone. I can take judicial notice of how text messaging works, and I do not need an expert to tell me that text messages are sent from one cell phone to another, that the date and the time the message is sent is captured on the receiver’s cell phone as is the sender’s phone number, as is shown in Exhibit 2. It is not unlike telling the time. You do not need to tell how a clock works to tell what time it is.

[16] Finally, the trial judge accepted N.B.’s evidence that she was frightened by the messages but did not report the matter to the police because she was trying to defuse the situation. The trial judge also accepted N.B.’s evidence that she believed she had no choice but to go to the police once Mr. Lambert told her he had a gun. Likewise, the trial judge accepted N.B.’s testimony that Mr. Lambert came to her house and to her place of employment and left threatening voice messages. She stated, “I base this conclusion on [N.B.]’s evidence as corroborated by the text messages, which I am satisfied were sent by Mr. Lambert.”

One of the accused’s grounds of appeal was that the trial judge had improperly taken judicial notice of how text messaging works. To address this question, the judge on appeal referred to R v Find from the Supreme Court of Canada:

In this case, the appellant relies heavily on proof by judicial notice. Judicial notice dispenses with the need for proof of facts that are clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy. [citations omitted]

The judge on appeal found that the trial judge stayed within the permissible bounds of judicial notice in most of her analysis, but veered over the line in part by assuming – and concluding -- there was only one way that a fabrication could be carried out:

[29] …. The trial judge held:

In my view, it would take an extraordinary effort on [N.B.]’s part to fabricate these text messages. She would need to obtain a second phone with the number 647-550-7359 assigned to it, create a contact with the name Barrii, and with that phone number in her contact list, and then proceed over 21 days to fabricate close to 2,000 lines of texts between her phone and the other phone. [Emphasis added.][16]

[30] Implicit in this finding is the assumption that the only way to fabricate a text message is by this method. There was no evidence at trial as to how text messages might be fabricated and made to appear to have come from another phone. There was no evidence that it would be impossible to fabricate date and time stamps of messages received and sent on one’s own phone. The trial judge concluded, however, that to have fabricated these messages the complainant would have had to send them at the dates and times reflected on her phone. Based on the normal way cell phones work, I accept that the trial judge could have taken judicial notice of the fact that this was one way to fabricate such messages. However, a determination that there was no other possible way to do so is a finding of fact that goes beyond what is notorious and indisputable. Such a determination could only be based on evidence from somebody with expertise in how this technology works. It cannot be the subject of judicial notice. The trial judge erred in law by making this finding in the absence of any evidence.

However, in the result, the judge concluded that it was an error that did not affect the final result.