(Extraits) ARE THE BLACKBERRIES THE ORIGIN OF THE DATA ON THE DVD? 29. The Crown did not seek to qualify Mr. Vecchio and Mr. Mokdad as experts concerning the “chipping off” and “parsing” processes. After some debate on the record and negotiations among the parties, the Crown undertook to ask them only about the steps they undertook in relation to the Blackberries, and not about how the processes worked or whether the output was complete, accurate or reliable. On agreement of all parties, to the extent that either of them testified that their work was successful, that evidence is inadmissible. 30. The Defence argue that the court cannot be satisfied that the contents of the DVD came from the Blackberries or that it is accurate, complete and reliable. They argue that the Crown is simply placing documentary evidence before the court and asking that it be accepted, without more. The Crown was on notice that it ought to have called expert evidence, but it chose not to do so. 31. On behalf of the Crown, Mr. Walsh submits that expert evidence is not required. He argues that there is no requirement, at common law or otherwise, that the DVD evidence be introduced through a particular sort of witness. He argues that this evidence is admissible as real evidence seized from the accused or that its authentication can be accomplished by appeal to circumstantial evidence already before the court. Continuity of the Blackberries 32. Any concerns relating to continuity of exhibits in the traditional sense go to weight rather than admissibility. Nonetheless, it is worth noting that the cumulative effect of the evidence of PC Robert, PC Cowan, Mr. Mokdad and Mr. Vecchio is that the Blackberries that had been in Mr. Avanes’ possession were those that were analyzed in Ottawa. 33. Initially, PC Robert either seized or took custody of them, and they were placed in police lockers. They were sent to London, and from there to Ottawa. Mr. Vecchio then returned them to London, where Mr. Mokdad received them. There are no realistic concerns that they were tampered with or confused with other devices. Did the Data on the DVD come from the Blackberries? 34. Given the chain of continuity and the evidence of Mr. Vecchio and Mr. Mokdad as to the steps they performed, I am satisfied that the Blackberries are the source of the contents of the DVD. 35. In coming to this view, I am conscious of the existence of a technological gap in the Crown’s evidence between the Blackberries, on one hand, and the contents of the DVD on the other. In the digital age, a similar gap exists when a witness testifies that she printed an electronic document, received a phone call from a particular person or copied the contents of a hard-drive onto an external device. But that gap is filled by our common experience with modern technology, even though we may not understand how photocopiers, digital telephone systems or personal computers treat and convert digital data into something intelligible. 36. It may be that the gap inherent in “chipping off” and “parsing” data will eventually be filled in the same way. But I do not believe that day has come, and I have been shown no authority that says otherwise. 37. The Crown’s analogy to documents in a briefcase is inapt because it presumes authenticity. With few exceptions, documents are not “self-authenticating.” Absent agreement, documents must be authenticated with evidence. The party tendering them must demonstrate that they are what they purport to be. This is so even if they are described as “real evidence.”[8][9] 38. The analogy is also overly simplistic. Documents on the Blackberry itself, if available for display on the screen or printed out conventionally, may have been akin to documents in a briefcase. But in this case, the data on the DVD is at a number of removes from the Blackberries. 39. While it might in other circumstances, proof of continuity does not amount to authentication in this case. Put another way, proving the provenance of a data extraction does not necessarily prove that the output is what it purports to be. Owing to the multiple and unexplained steps involved in this case, more is required. AUTHENTICATION & BEST EVIDENCE Common Law or CEA? 40. At common law, authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the evidence sought to be admitted is what it purports to be.[10] 41. Historically, the best evidence rule required a party to produce the best evidence available. Such a conception of the rule has, over time, become eroded[11] – particularly in the context of computerized documents, to which the concept of “original” does not easily apply. Some have argued that in this context, the rule has become obsolete and that concerns that may arise are a matter of weight.[12] 42. The Defence contend that compliance with the authenticity and best evidence requirements of the electronic documents provisions of theCEA is a condition precedent to the admissibility of the DVD’s contents. In addition, they argue that the CEA’s requirements impose a higher burden on the proponent of an electronic document than does the common law. 43. The Crown argues that the provisions are grouped among other provisions under the heading “documentary evidence” and that they are concerned with hearsay. As a result, they are not applicable in this case. 44. I disagree with the Crown’s interpretation of the provisions and find that they do apply to the contents of the DVD. 45. First, it is simply not the case that each of the sections found under the “documentary evidence” heading concerns itself with hearsay. Several of the sections serve only to facilitate the manner of proof of certain types of documents: see, for instance, ss. 19-23. 46. Second, a review of the provisions themselves indicates that their focus is not the contents of electronic documents but rather their authenticity and the integrity of the system that recorded or stored them. Their purpose is to address the realities of dealing with computer generated documents.[13] It is for this reason, in my view, that Greene J. concluded that they do not “provide for an exception to the hearsay rule” in v. Mondor.[14] Similarly, in R. v. Morgan, Flynn J. held that the provisions “must work in conjunction with either some common law general rule of admissibility of documents or some other statutory provision” (such as exceptions to the rule against hearsay).[15] 47. The very broad language of the provisions suggests that they apply to evidence such as the contents of the DVD. Section 31.1 is categorical. It reads as follows: 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. 48. Electronic documents are defined as data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device. It includes a display, printout or other output of that data. 49. Data is defined as representations of information or of concepts, in any form. 50. I find that the contents of the DVD are “electronic documents” and “data” as defined by the provisions. I would also find that the Blackberries are included in the definitions of “computer system” or “electronic documents system.”[16] 51. These conclusions find support in academic scholarship and case law. In his article cited above, Justice Paciocco makes reference to the use the Crown can make of the provisions (and the presumptions they include) in relation to “any electronic document seized from a computer or smart phone or similar device that was probably used by the accused,” and finds that they constitute legal prerequisites to admissibility.[17] Also, the provisions were applied by the Superior Court of Justice in v. Rowe,[18] which dealt with text messages sent to and from the accused’s cellular phone. 52. As a result, I find that the authenticity and integrity provisions of the CEA constitute legal prerequisites to the admissibility of Exhibit 57. Authenticity under the CEA: Burden of Proof 53. The Defence argue that the authenticity and “best evidence” requirements of the CEA have modified the common law and made it more onerous. They base their argument on the wording of 31.7, which states that Sections 31.1 to 31.4 do not affect any rule of law relating to the admissibility of evidence, except the rules relating to authentication and best evidence [my emphasis] In particular, they submit that the use of the word “affect” connotes a material change to the way these terms were understood at common law. Otherwise, they argue, the provisions are redundant. In support of their argument, they point to the fact that in the business records context, Parliament saw fit to explicitly preserve the common law. Section 30(11) of the CEA states as follows: The provisions of this section shall be deemed to be in addition to and not in derogation of … any existing rule of law under which any record is admissible in evidence or any matter may be proved [my emphasis] 54. The Crown argues that the CEA’s electronic documents provisions provide shortcuts for the admission of electronic evidence and do not raise their proponent’s burden of proof. 55. I find that the authenticity requirement in the electronic documents provisions does not modify the common law but codifies it. 56. First, on its own terms, 31.1 does not impose a balance of probabilities burden on the party seeking the admission of the evidence. Rather, it refers to “evidence capable of supporting a finding that the electronic document is that which it is purported to be.” That is a recitation of the common law’s concept of authentication, which imposes a low standard.[19] 57. By contrast, Parliament saw fit to specify the civil burden of proof with respect to some of the presumptions set out within the very same set of provisions. Section 31.3(b) states that the proponent must establish that the document was recorded or stored by a party who is adverse in interest to the party seeking to introduce it.[20] Had Parliament intended to raise the burden of proof as to authenticity, one would expect that it would have done so explicitly as it did in other parts of the same amendment. 58. Second, the word “affect” does not necessarily connote change. It is here that a comparison to the provisions’ model, the Uniform Law Conference of Canada’s Uniform Electronic Evidence Act (“UEEA”) is useful. The CEA provisions mirror the UEEA’s provisions almost identically. One notable exception is that in the CEA, Parliament opted to substitute the word affect for the word modify, which had been in the UEEA’s counterpart section. This approach must have been intentional. In my view, affect is much less suggestive of change than modify. 59. Third, there appears to be academic agreement that the provisions of the CEA (and the UEEA model code before it) constitute a codification of the common law.[21] 60. Also of some interest is the legislative background to Bill C-6, which contained the amendments to the CEA. There, it is stated that the proposed amendments would “clarify how the courts would assess the reliability of electronic records used as evidence.”[22] This modest description does not evoke notions of material change to the common law’s concept of authentication. Best Evidence under the CEA 61. The Crown argues that if the CEA applies, then so too does the presumption of integrity found at 31.3(b). It reads as follows: For the purposes of subsection 31.2(1), in the absence of evidence to the contrary, the integrity of an electronic documents system by or in which an electronic document is recorded or stored is proven… (b) if it is established that the electronic document was recorded or stored by a party who is adverse in interest to the party seeking to introduce it…. 62. The Defence did not tackle this presumption in their written or oral submissions. 63. I find that this presumption is available to the Crown if it satisfies the Court on a balance of probabilities that the documents were recorded or stored by Mr. Avanes. As Justice Paciocco opined in his article, this presumption is “tremendously useful to the Crown in criminal cases” when electronic documents are seized from accused persons “unless the accused can show that the electronics document system was not able to record and store information accurately.”[23] VII. AUTHENTICATION AND BEST EVIDENCE – AS APPLIED TO THE FACTS Authentication 64. The Defence argue that an expert (and only an expert) could have authenticated the contents of the DVD. In the absence of such a witness, the evidence is inadmissible. 65. Clearly, and by its own admission, the Crown bears the burden with respect to this evidence. It would have been preferable by far for the Crown to locate a witness with the appropriate knowledge and experience regarding the “chipping off” and “parsing” processes. Had it done so, it is very likely that affidavit evidence would have sufficed. Instead, the Crown’s approach led to significant costs being borne by all parties and the administration of justice. It gave rise to the need for a great deal of legal research, thorough written submissions and additional court time, all in the context of mid-trial evidentiary ruling. This may have been, in part, because the electronic documents provisions appear to have been honoured in the breach to some extent since their enactment.[24] Regardless, this approach is to be discouraged. 66. Having said that, it is also clear that the authenticity requirement can be satisfied by appeal to circumstantial evidence. No single or “optimal” witness is strictly required.[25] 67. In this case, the Crown is not simply putting forward a mass of documents and asking the Court to rely on their face alone to infer their authenticity. In Part II.D. of its Factum, the Crown exposes a number of ways in which other evidence tendered in this trial acts as circumstantial evidence that the electronic documents are what they purport to be. I agree. 68. For instance, the PIN numbers attached to the messages on the DVD match the PIN numbers inscribed on the Blackberries themselves. Photos of Mr. Avanes are among the data extracted from both Blackberries. The Blackberry seized from Mr. Avanes upon arrest outside the warehouse in Vaughan contained a photograph of the ZIM container in what, based on comparison to police photographs, appears to be the interior of that same warehouse.[26] Likewise, data on the Blackberries such as call logs, PINs and SMS messages find their match in the intercepts and production order results already in evidence. 69. The recent case of v. Andalib-Goortani was the subject of some debate before me, largely because it placed on the Crown the burden of establishing that a computer-generated image had not been altered or tampered with.[27] At issue in that case was a photograph that appeared to show the accused police officer assaulting the complainant. It had been posted anonymously to a website, and there was some evidence that it had been tampered with. The complainant was unable to identify the accused in the photograph. 70. In his analysis, Justice Trotter indicated that [m]aterials taken from websites and offered as evidence in court must be approached with caution, especially in a case such as this where no one is prepared to step forward to say, "I took that photo and it has not been altered or changed in anyway."[28] 71. I appreciate that Nikolovski, on which Justice Trotter relied, appears to place the burden on the Crown to prove the absence of alterations or changes on a balance of probabilities as a precondition to admissibility (at least in the context of videotape evidence). Whether this is so is a matter of debate. The Alberta Court of Appeal has recently taken a contrary position.[29] 72. While I am of the view that the effect of Nikolovski and Andalib-Goortani can be limited to cases involving similar subject-matter and issues (videotapes and images taken from the internet), I do not pretend to resolve the controversy here. 73. As I have stated above, I do not have concerns about tampering or alteration in this case. Nor, for that matter, am I concerned that the DVD evinces unfairness or an intention to mislead.[30] And even if I am in error in finding that the CEA’s electronic documents provisions impose a low standard for authentication, I am satisfied that the Crown has gone beyond that standard to establish the authenticity of the contents of the DVD on a balance of probabilities in this case. Integrity and Best Evidence 74. I have already explained that I am satisfied that both Blackberries were probably in Mr. Avanes’ possession. Based on that fact, as well as the contents of the Blackberries (which have been authenticated), I am also satisfied that Mr. Avanes probably recorded or stored the PINs, SMS text messages and photographs on the Blackberries. 75. It was open to the Defence to call evidence as to the integrity of the Blackberries. They did not do so. 76. In the absence of evidence to the contrary, I find that the presumption applies to satisfy the best evidence rule with respect to the contents of the DVD. 77. The Crown has therefore satisfied the authenticity and integrity requirements imposed by the CEA with respect to the contents of the DVD. In my view, this renders the evidence conditionally The Crown must still satisfy the court that the documents are admissible in conjunction with other rules of evidence. 78. The Defence argue that the Crown must demonstrate that the contents of Exhibit 57 are reliable in the sense of being a complete and accurate representation of the data contained on the Blackberry chips. Mr. Cooper adds that the burden of proof is the civil standard. They argue by analogy to hearsay cases such as v. Khelawon and R. v. B.(K.G.).[31] 79. The Crown maintains that it bears no such onus beyond demonstrating continuity and authenticity, subject to the court’s discretion to exclude evidence whose prejudicial value outweighs its probative value. 80. In my view, the cases upon which the Defence rely are inapplicable. They involve hearsay (out of court statements of non-parties), which is presumptively inadmissible. They do not involve real evidence or statements of an accused person. As concerns the statements attributable to Mr. Avanes, the better analogy is to cases involving “confessions” or results of wire-taps, where the Crown does not bear a burden to demonstrate threshold reliability. In those contexts, issues such as source, integrity and accuracy of the evidence are questions of weight.[32] ADMISSIBILITY OF THE CONTENTS OF THE DVD 81. The Crown submits that the electronic documents are admissible as follows: (a) as real evidence (i.e. metadata) against all accused for their circumstantial value; (b) in their entirety as documents found in Mr. Avanes’ possession and acted upon by him for their truth; (c) in their entirety, as circumstantial evidence of the existence of a conspiracy against Messrs. Formusa and Jankovic; and (d) as admissions (i.e. the contents of various messages) against Mr. Avanes for their truth and vicariously against all defendants through the application of the co-actors rule. 82. I am satisfied that the electronic documents contained in the DVD are admissible for the purposes the Crown has identified. I note that the Defence did not make submissions directly challenging these potential avenues of admissibility. Their arguments were completely focused upon authenticity, how that concept was to be understood and applied and the court’s overarching discretion to exclude prejudicial evidence. PROBATIVE VALUE vs. PREJUDICIAL EFFECT Applicable Legal Principles 83. As a final alternative, the Defence urge me to exclude the contents of the DVD on the basis that its probative value is outweighed by its prejudicial effect. 84. Probative value of evidence includes its strength, the extent to which it supports the inferences that the party asks the court to draw from it and the extent to which it tends to prove matters at issue. It need not be dispositive of the factual issues to which it relates.[33] 85. In assessing the prejudicial effect of evidence, I am to take into account: (a) the degree of discreditable conduct disclosed by the evidence; (b) the extent to which the proposed evidence may support an inference of guilt on the sole basis of bad character; (b) the extent to which the evidence may confuse issues; and (d) the ability of the accused to respond to the evidence.[34] 86. As I consider these factors, I must bear in mind that there are two types of prejudice: moral prejudice and reasoning prejudice. The former refers to the risks of an unfocused trial or of arriving at a conclusion of guilt by way of a prohibited chain of reasoning such as propensity. The latter refers to the risk of giving more weight to items of evidence than is their due, such as might be the case when undue time is consumed by the introduction of evidence of other incidents.[35] Probative Value 87. The evidence contained in the DVD is probative of Mr. Avanes’ state of mind and knowledge surrounding the shipment and its contents. It is also probative of the existence of a conspiracy and its membership. The real evidence it contains (the metadata) is strong. The evidence that Mr. Avanes was among the interlocutors in the various message exchanges is also strong, given the factors pointing to him as the user of the Blackberries. 88. The probative value of the evidence is significant. Prejudicial Effect 89. I am not concerned that the evidence discloses discreditable conduct or that, if it does, it would support an inference of guilt based solely upon such conduct. Nor am I concerned that the evidence will confuse the issues. 90. While Mr. Avanes is best placed to respond to the evidence, all accused are in a position to do so to the extent that it purports to involve them or devices the Crown seeks to attribute to them. 91. Setting aside the fact that I sit as a judge alone in this matter, I do not see in the electronic documents anything that would risk engendering moral or reasoning prejudice. They do not contain extrinsic misconduct that would risk distracting me from my task, nor are they apt to take up more time than is their due. (In this case, the time the issue has occupied was not so much a function of the nature of the evidence but rather of the Crown’s approach, about which I have already commented.) 92. It should be pointed out at this stage that I invited the parties to make submissions regarding the concerns that existed in v. Ferris.[36] In Ferris, an officer had overheard a small snippet of what the accused told his father over the telephone. It was excluded on the basis that its prejudicial effect outweighed its probative value. This was because there were no circumstances or context from which the true meaning of the accused’s words could be inferred. Without meaning, the words had no relevance or probative value.[37] 93. The Defence seek to characterize the contents of the DVD in the same way. In particular, they submit that one must speculate in order to determine the meaning of some of the words and phrases used (“lui”, “girls”, “50 girls” and “they brought me the girls and they are already sleeping in the room”). 94. I disagree. While the meaning of those words and phrases will be the subject of debate, they do not exist in a vacuum. To the contrary, they are found in the context of electronic messages that appear to be conversations. Those conversations, in turn, are to be viewed in the context of the evidence as a whole. 95. The prejudicial value of the evidence, if any, is negligible, and is clearly outweighed by its probative value. CONCLUSION 96. For the foregoing reasons, the contents of the DVD currently marked as Exhibit 57 (and their translations, where necessary) are admissible. Dernière modification : le 2 novembre 2015 à 13 h 27 min.
