COURT OF APPEAL FOR ONTARIO

CITATION: R. v. S.H., 2019 ONCA 669

DATE: 20190903

DOCKET: C64876

Simmons, Tulloch and Brown JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

S.H.
[1]

Appellant

Michael Dineen, for the appellant

Dale E. Ives, for the respondent

Heard: March 11, 2019

On appeal from the convictions entered and the sentence
imposed by Justice James C. Crawford of the Ontario Court of Justice on December
4, 2017.

Simmons J.A.:

A.      INTRODUCTION

[1]

The appellant was present with six other people
at a rural residence near Bradford when police executed a search warrant at
5:45 a.m. on September 23, 2015. The appellant answered the door when the
police arrived. In response to an officers question, the appellant told the
police there was nothing in the home that would hurt them. He also acknowledged
that he had oxycodone pills in a book bag and a bag of marijuana on a table in
the living room.
[2]
The police discovered an ounce of cocaine in a small safe in the basement and 50
marijuana plants growing outside the house.

[2]

The appellant was charged with, and subsequently
convicted of, possession of cocaine for the purpose of trafficking, possession
of oxycodone, production of marijuana, and possession of marijuana for the
purpose of trafficking.
[3]
C.H., a young person alleged to be the appellant's son, who was present at the
residence when the search warrant was executed, was also charged with various
offences.

[3]

At the appellants trial, the Crown relied
heavily on evidence relating to data extracted from a Samsung cell phone found
in the basement of the residence. The evidence was used to support inferences
that the cell phone belonged to C.H., that C.H. was the appellants son, that
the appellant and C.H. lived in the same household, and that they were jointly
involved in production of marijuana and trafficking in marijuana and cocaine.
This evidence included information about an e-mail address used by the Samsung
cell phone user, which mirrored C.H.s forename and surname initial; the
telephone number of a contact identified as Dad in the cell phone contacts
list; and the telephone number assigned to the Samsung cell phone. It also
included an extraction report isolating over 900 text messages allegedly
exchanged between the appellant and C.H. and opinion evidence relating to
drug-related terminology allegedly contained in some of the text messages.

[4]

In addition to the evidence about the data from
the Samsung cell phone, the Crown also relied on evidence from the
officer-in-charge to support inferences that the appellant and C.H. were father
and son and that the telephone number associated with Dad in the Samsung cell
phone contacts list was the appellants. The officer-in-charge said that he
knew the appellant and C.H. to be father and son because he had dealt with both
in the past and had arrested C.H. previously. Further, he believed the
telephone number associated with Dad in the Samsung cell phone contacts list
was the appellants because, upon being arrested in a subsequent investigation,
the appellant identified it as his telephone number.

[5]

The appellant did not call evidence at trial. In
closing argument, defence counsel at trial (not Mr. Dineen) raised no issue
regarding the charges for possession of oxycodone and marijuana arising from
the appellants acknowledgement of their possession at the time of the search.
However, defence counsel argued that, apart from the officer-in-charges
conclusory statements that the appellant lived at the residence from which the
drugs had been seized, the Crown had led no evidence to establish that fact.
Further, defence counsel submitted that the evidence on which the Crown relied
to establish the appellants cell phone number, his relationship with others
found in the home, including C.H., and the Samsung cell phone number was
hearsay. Following a Crown objection, the trial judge ruled that defence
counsels failure to cross-examine the officer on at least some of these
subjects violated the rule in
Browne v. Dunn
(1893), 6 R. 67 (H.L.). The trial judge therefore permitted the Crown to recall
the officer-in-charge to give further evidence concerning the basis for his
beliefs about the appellant living at the residence, the appellants cell phone
number, and the appellants relationship with the other people found at the
residence.

[6]

The trial judge also requested and received
written submissions concerning the admissibility of the data extracted from the
Samsung cell phone and the related extraction report isolating text messages
allegedly exchanged between the appellant and C.H. He ultimately ruled that the
evidence met the best evidence rule admissibility requirement under s.
31.3(b) of the
Canada Evidence Act
, R.S.C.
1985, c. C-5. That section creates a presumption of integrity for an electronic
documents system arising from storage of an electronic document by a party
adverse in interest. Further, the trial judge found the appellants text
messages admissible as statements of an accused person and C.H.s statements
admissible either on the basis of apparent common design relating to the
drugs, or simply to prove context to the [appellants] statements. Relying on
the whole of the evidence, the trial judge found the appellant guilty of the
offences charged.

[7]

The appellant raises three issues on his
conviction appeal. First, he argues the trial judge erred in finding the rule
in
Browne v. Dunn
was engaged and in allowing
the Crown to split its case by recalling the officer-in-charge. Second, he
argues that the trial judge erred in relying on s. 31.3(b) of the
Canada
Evidence Act

to hold that the evidence relating to
the data extracted from the Samsung cell phone satisfied the best evidence rule.
Third, he argues that the trial judge erred in admitting and relying on the
officer-in-charges evidence that he had no doubt that the text messages at
issue were exchanged between the appellant and C.H.

[8]

For the reasons that follow, I would dismiss the
conviction appeal. The Crown concedes that the trial judge erred in relying on
s. 31.3(b) of the
Canada Evidence Act
to hold
that the data extracted from the Samsung cell phone met the best evidence rule
admissibility requirement. However, the Crown argues, and I agree, that the
data satisfied that requirement under s. 31.3(a) of the
Canada
Evidence Act
, which creates a presumption of integrity for
an electronic documents system arising from storage of an electronic document on
a properly operating electronic documents system. I also agree that no
substantial wrong or miscarriage of justice arises from this error, because it
was trivial in the circumstances. Further, even assuming the trial judge made
the second and third errors alleged, I am satisfied the other evidence adduced
at trial, including the extracted data, overwhelmingly supported the
convictions.

[9]

I would allow the sentence appeal, in part, by
setting aside the victim fine surcharge, but otherwise dismiss the sentence
appeal as abandoned.

B.      ADMISSIBILITY OF CELL PHONE EVIDENCE

(i)

Introduction

[10]

Sections 31.1, 31.2, and 31.3 of the
Canada
Evidence Act
prescribe the manner in which electronic
documents can meet the common law authenticity and best evidence rules, which impose
threshold requirements for the admissibility of documents at a trial. In
addition to these threshold requirements, electronic documents  like any other
form of document  must satisfy common law or statutory admissibility rules to
support the admission of their contents.

[11]

The trial judge found that the electronic data
evidence introduced in this case met the authenticity and best evidence rule
requirements set out in the
Canada Evidence Act
. He also found the evidence admissible for the truth of its
content. On appeal, the sole challenge to these rulings is the trial judges
reliance on s. 31.3(b) of the
Canada Evidence Act
to support satisfaction of the best evidence rule. As I have said,
the Crown concedes the trial judges reliance on s. 31.3(b) was in error, but
argues the evidence was properly admissible under s. 31.3(a).

(ii)

Discussion

[12]

Section 31.2 of the
Canada Evidence
Act

describes two ways in which the best evidence rule
can be met. The first is on proof of the integrity of the electronic documents
system by or in which the electronic document was recorded or stored: s.
31.2(1)(a). The second is if an evidentiary presumption under s. 31.4
applies. Section 31.2 reads as follows:

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[13]

In this case, the Crown relies on s. 31.2(1)(a),
under which the best evidence rule can be satisfied by proof of the integrity
of the electronic documents system on which an electronic document is stored. Section
31.3 describes three methods by which, in the absence of evidence to the
contrary, the integrity of an electronic documents system may be proven. Paraphrased,
those methods are:

·

presumption of integrity of an electronic
documents system arising from evidence capable of supporting a finding of
storage of the electronic document[s] on a properly operating computer or other
similar device (s. 31.3(a));

·

presumption of integrity of an electronic
documents system arising from storage of an electronic document by a party
adverse in interest (s. 31.3(b)); and

·

presumption of integrity of an electronic
documents system arising from storage of an electronic document in the usual
and ordinary course of business (s. 31.3(c)).

[14]

Subsections 31.3(a) and (b) are the relevant
provisions for the purposes of this appeal. Those subsections read as follows:

31.3 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

(a) by evidence capable of supporting a finding that at all
material times the computer system or other similar device used by the
electronic documents system was operating properly or, if it was not, the fact
of its not operating properly did not affect the integrity of the electronic
document and there are no other reasonable grounds to doubt the integrity of
the electronic documents system;

(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.

[15]

The Crown acknowledges that because it alleged
that the Samsung cell phone belonged to C.H.  and because C.H. was not the
accused in this case  s. 31.3(b), on which the trial judge relied, does not apply.
Rather, on appeal, the Crown relies on s. 31.3(a) and argues that the evidence
led at trial was capable of supporting a finding that at all material times
the [Samsung cell phone] was operating properly, or, if it was not, the fact of
its not operating properly did not affect the integrity of the electronic
document[s relied on by the Crown] and there are no other reasonable grounds to
doubt the integrity of the [Samsung cell phone] system.

[16]

The appellant resists this argument on two
bases. First, he submits that the Crown did not claim at trial that it had led
evidence to satisfy the requirements of s. 31.3(a). Second, he argues that, to
satisfy the best evidence rule, the Crown should have called C.H. as a witness
at trial to confirm the text messages introduced in evidence were sent or
received. Alternatively, the Crown could have adduced evidence of testing the
Samsung cell phone to ensure the text messaging function was operating
properly. As the Crown failed to adduce either form of evidence, it could not
satisfy the best evidence rule.

[17]

I accept the Crowns submission that the
evidence adduced at trial was capable of supporting a finding that the Samsung
cell phone was functioning properly at all material times or, if it was not,
that any malfunction did not affect the integrity of the electronic documents
relied on by the Crown, and that there are no other grounds to doubt the
integrity of the electronic documents system. I am also satisfied that the
Crown is entitled to rely on s. 31.3(a) on appeal and that no substantial wrong
or miscarriage of justice arises from the trial judges reliance on s. 31.3(b).

[18]

The Crown called four witnesses at trial: i) police
officer Justin Ford, who extracted the data from the Samsung cell phone; ii) police
officer Mitch Dietrich, who acted as the exhibits officer when the search
warrant was executed; iii) police officer Jeff Varey, who prepared the
extraction report and was the officer-in-charge of executing the search
warrant; and iv) police officer Steven Martell, who was qualified to give
expert opinion evidence concerning trafficking in cocaine and marijuana.

[19]

Officer Ford explained that he used a read-only forensic
extraction device (a UFED Touch) to unlock, extract data from, and create, in
disc format, a copy of the Samsung cell phone. He testified that he is a
trained and certified operator of the UFED Touch, that he verified that the
disc accurately reflected data from the Samsung cell phone, and that it
included deleted content. He also explained that once the cell phone was
unlocked, he was able to obtain from it its assigned telephone number, which
ended with 0137, and the users e-mail address. The e-mail address corresponded
with the first letter of C.H.s (the young person alleged to be the appellants
son) surname and his complete forename.

[20]

Officer Ford provided a disc containing a copy
of the information on the Samsung cell phone and a reader program associated
with the UFED to officer Varey. Officer Ford explained that the reader program
could generate extraction reports isolating text messages between the cell
phone from which the data was extracted (the source data cell phone) and
another party. In doing so, the reader program would populate the report with both
the telephone number of the other party and the associated name in the source
data cell phones contact list.

[21]

While in the witness box, officer Ford examined
an extraction report, created by officer Varey
[4]
,
which was marked as exhibit 3B at trial. The extraction report isolated text
messages sent primarily between the Samsung cell phone and a telephone number ending
with 6847, which was associated with the contact name Dad in the Samsung cell
phone contacts list. Officer Ford confirmed that a status column on the
extraction report indicated whether a text message received on the Samsung cell
phone had been read or was simply waiting in the inbox. The status column on
the extraction report also confirmed whether a text message sent on the Samsung
cell phone had been sent and read or whether its status was sent and unknown.
Another column on the extraction report indicated whether the message box
contained deleted, but recovered, content.

[22]

A review of the extraction report marked as
exhibit 3B reveals a record of 965 purported text messages, listed in reverse
chronological order, between the Samsung cell phone and the 6847 number. The
purported text messages ranged in date from April 17, 2015 to September 22,
2015, the day before the execution of the search warrant. A review of the
purported text messages reveals consistently coherent conversations between the
sender and recipient, some examples of which are the following:

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[23]

Officer Varey confirmed that, in addition to
exhibit 3B, the disc prepared by officer Ford revealed thousands of other text
messages exchanged between the Samsung telephone and other recipients as well
as photographs. He also stated that the Samsung cell phone was in good working
order.

[24]

In my view, an examination of exhibit 3B in
combination with the evidence of officers Ford and Varey is manifestly capable
of supporting a finding that, at all material times, the Samsung cell phone was
working properly or if it was not, that any malfunction did not affect the
integrity of the electronic documents relied on by the Crown, and that there
are no other reasonable grounds to doubt the integrity of the electronic
documents system.

[25]

In
my view, the requirement in s. 31.3(a) of the
Canada Evidence Act

for
evidence capable of supporting the relevant findings
represents a low threshold. This is apparent
when s. 31.3(a)
is read in context with, for example s. 31.3(b), which requires that it be
established that an electronic document was recorded or stored by a party
adverse in interest.

[26]

Exhibit 3B, when reviewed in the light of officers
Ford and Vareys evidence reveals the presence of numerous text messages stored
in chronological order and customary format, demonstrating coherent
conversations, between a sender and a recipient that had been both sent and
received by the Samsung cell phone. The extraction report also indicated that
numerous messages had been read by a recipient.

[27]

Further, the conversations on the extraction
report are contextually consistent with other facts in this case. For example,
there are references to a dog and a pig in the text messages. According to officer
Vareys initial evidence, both a dog and a pig were present when the search
warrant was executed. No basis for questioning the integrity of the electronic
documents system has been suggested on appeal or in the court below.

[28]

In my view, the appellants arguments that it
was necessary that the Crown call C.H. to verify the content of the text
messages or provide evidence of testing the Samsung cell phone text messaging
system is misconceived. In the context of the evidence adduced in this case,
that would amount to requiring that it be established that, at all material
times, the Samsung cell phone was operating properly. That is not the threshold
under s. 31.3(a).

[29]

Similarly, I reject the appellants argument
that the fact that the Crown did not argue that it had satisfied s. 31.3(a) in
the court below should foreclose its reliance on that section on appeal. As
noted in
R. v. C. (W.B.)
, 130 O.A.C. 1, the
Crown,
as respondent, is entitled to
advance any argument to sustain the conviction that can be based on the record
made at trial (citing
R. v. Perka
,
[1984] 2 S.C.R. 232 at 238-40;
Idziak v. Canada (Minister of
Justice)
, [1992] 3 S.C.R. 631 at 643-4;
R.
v. Keegstra
, [1995] 2 S.C.R. 381 at 398).

[30]

In my view, the evidence at trial
clearly satisfied the requirements of
s. 31.3(a). The
appellant did not argue on appeal that he would have adopted a different trial
strategy had the Crown relied on s. 31.3(a) at trial. In any event, had the
appellant been in a position to lead evidence to the contrary calling into
question the integrity of the electronic documents system, he should have done
so regardless of which subsection of s. 31.3 on which the Crown relied.

[31]

As the impugned evidence was properly admissible
at trial, and as no valid concern about prejudice has been raised, I conclude
that the trial judges reliance on s. 31.3(b) of the
Canada Evidence
Act
instead of s. 31.3(a) was a minor error that did not
affect the outcome of the trial.

C.      OTHER GROUNDS OF APPEAL

[32]

As I have said, the appellant's second ground of
appeal is that the trial judge erred in permitting the Crown to split its case
by recalling officer Varey to give additional evidence to support his earlier assertions
that the appellant lived at the residence where the search warrant was
executed, that C.H. was the appellants son, and that the appellant had told
him during an earlier investigation that the 6847 phone number was his.

[33]

The appellants third ground of appeal is that
the trial judge erred in relying on inadmissible opinion evidence elicited by
the Crown from officer Varey that he had no doubt that the text messages in
exhibit 3B were exchanged between the appellant and his son.

[34]

I would not give effect to these grounds of
appeal. Even assuming the trial judge erred as alleged, I conclude that the
other evidence adduced at trial overwhelmingly supported the appellants
convictions.

[35]

In reaching this conclusion, I have considered
what appear to be two factual errors by the trial judge that the appellant did
not raise on appeal but which the panel raised with counsel in post-hearing
correspondence.

[36]

The first such error is that, although the trial
judge correctly noted that the police seized three cell phones
[5]
during the execution of the
search warrant, he erroneously described the cell phone from which data was
extracted and for which the extraction report marked as exhibit 3B was prepared
as being an iPhone seized from C.H.
[6]
The police evidence at trial was that the data that formed the subject matter
of exhibit 3B was extracted from the Samsung cell phone found in the basement.

[37]

The second error is that, in his
Browne
v. Dunn
ruling, the trial judge said voluntariness had
been conceded regarding conversations between the appellant and police
officers. While that statement is accurate in relation to conversations between
the appellant and the police during the execution of the search warrant, I could
find no such concession in relation to officer Vareys evidence about the
appellants disclosure of his cell phone number to the police.

[38]

In post-hearing correspondence, the Crown argued
that although defence counsel at trial did not specifically state there was no
issue with voluntariness concerning the appellants cell phone number, he
effectively advised the court by his conduct and his words that a
voir
dire
was not wanted or required. However, given the high
onus on trial judges in relation to voluntariness
[7]
, the absence of a specific
concession, and the absence of any explanation for the finding of a concession,
I will proceed on the basis that the trial judge erred in failing to hold a
voluntariness
voir dire
concerning the cell
phone number. Nonetheless, despite these apparent errors, in my view, the
admissible evidence at trial overwhelmingly supported the appellants
convictions.

[39]

As noted above, when the Samsung cell phone was
unlocked it revealed the users e-mail address as including the first letter of
C.H.s surname and his full forename. This evidence, together with the
following evidence, overwhelmingly supported the inference that the Samsung
cell phone belonged to C.H.; that the recipient of his text messages as set out
on exhibit 3B was C.H.s father, the appellant; that C.H. and the appellant
both lived at or exercised control over the residence where the drugs were
found; and that C.H. and the appellant were engaged in a joint enterprise
involving production of marijuana and trafficking:

·

C.H. and the appellant were both present in the
residence at 5:45 a.m. on September 23, 2015, when the search warrant was
executed, and the appellant answered the door;

·

the appellant and C.H. were sitting together on
a couch when officer Varey asked whether there was anything in the house that
could hurt the police and the appellant answered, no  no knives, like sharp
needles, anything like that;

·

the Samsung cell phone was found in the basement
of the residence when the search warrant was executed;

·

upon executing the search warrant, police
obtained information from the other persons present about their names and dates
of birth, but none gave a name that in any way corresponded with the e-mail
address associated with the Samsung cell phone
[8]
;

·

in his initial testimony, officer Varey
confirmed, albeit without elaboration, that there was other stuff on the copy
of the Samsung cell phone provided by officer Ford that had to do with C.H.,
his name, and his pictures;

·

in his initial testimony, officer Varey said he
knew the appellant and C.H. to be father and son based on previous dealings
with both;

·

the contact list in the Samsung cell phone
includes the name Dad associated with the cell phone number ending 6847;

·

many of the text messages set out in exhibit 3B
which were sent from the Samsung cell phone to the cell phone number ending 6847
are addressed to Dad (for example see message 14 in para. 22 above);

·

in a text message set out in exhibit 3B sent
from the Samsung cell phone to the cell phone number ending 6847 dated June 21,
2015 (Fathers Day 2015), the sender wishes the recipient: oh ya happy
fathers day dad;

·

many of the text messages set out in exhibit 3B from
cell phone number ending 6847 to the Samsung cell phone are addressed to a
short form of C.H.s forename or refer to his forename;

·

many of the text messages set out in exhibit 3B
gave rise to an inference that the sender and the recipient lived together (as
examples, see messages 30-32 and 37-8 at para. 22 above; message 510 from
Dad: Let dog in please; message 511 to Dad: Dad wake me up for work
tomorrow cool?; message 520 to Dad: Hey dad Im going to the mall with [R.]
Ill be back in a Lil and can we build dat dog house or w e and oh ya happy
fathers day dad; message 527 to Dad: Dad can [S.] and his girl sleep at
the house tonight; etc.);

·

the content of some of the text messages set out
in exhibit 3B contextually corresponded to items found at the residence when
the search warrant was executed, for example, a dog (see messages 510 and 520
above), a pig (message 310 from Dad: Thanks for feeding the pig), and jars
filled with marijuana (see message 14 at para. 22 above);
[9]

·

expert evidence that the content of some of the
coded text messages isolated on exhibit 3B indicated the sender and recipient
were engaged in drug trafficking in marijuana and cocaine;

·

as noted above, upon execution of the search
warrant, the appellant acknowledged possession of some oxycodone pills and a
bag of marijuana.

[40]

In
the face of this evidence, even assuming the trial judge made the errors
alleged, I would not give effect to the second and third grounds of appeal.

D.      DISPOSITION

[41]

Based
on the foregoing reasons, I would dismiss the conviction appeal. The Crown
concedes that the victim fine surcharge imposed as part of the sentence should
be set aside. I would allow the sentence appeal in part by setting aside the
victim fine surcharge but would otherwise dismiss the sentence appeal as
abandoned.

Janet Simmons J.A.

I agree. David Brown J.A.

Tulloch J.A. (Dissenting):

I.

OVERVIEW

[42]

I respectfully disagree with my
colleagues conclusion that the errors relating to the reopening of the Crowns
case, the best evidence rule, and the trial judges failure to hold a
voir
dire
on the admissibility of the
appellants statement to a person in authority would not have affected the
verdict. Each of these errors deprived the appellant of a fundamental
procedural right that was a safeguard of his right to a fair trial. The
evidence that was admitted as a result of these errors buttressed critical
parts of the Crowns case. The trial judge characterized this evidence as
important and this evidence played a key role in his reasoning process that led
him to convict the appellant. On its own, any one of these errors would be
enough to require a new trial. When these three errors are taken together, the
case for a new trial is all the more compelling. Accordingly, I cannot agree
with my colleagues conclusion that the curative proviso in s. 686(1)(b)(iii)
of the
Criminal Code
can save
all three errors.

[43]

My reasons proceed as follows. I
begin by providing a discussion of the facts that are relevant to the three
errors that I have identified. I then outline those errors. First, the trial
judge erred in law in reopening the Crowns case, and the curative proviso
cannot save this error because the evidence elicited on reopening was central
to the Crowns case. Second, the curative proviso cannot save the trial judges
legal error in admitting the text messages pursuant to the adverse party
presumption in s. 31.3(b) of the
Canada Evidence Act
, R.S.C. 1985, c. C-5 (
CEA
). The Crowns
failure to raise the provision of the
CEA
at trial that it now relies on is unfair to the
appellant and it is not certain that the trial judge would have admitted the
messages had the parties drawn his attention to this provision. Third, the
curative proviso cannot save the trial judges failure to hold a
voir
dire
on the appellants disclosure of his
cell phone number to Officer Varey because this evidence was central to the
trial judges decision to admit the cell phone records and convict the
appellant. I briefly discuss the improper police action of threatening to rip
apart the appellants home to prompt him to confess. Finally, I explain why
the three errors, viewed cumulatively, require a new trial for the appellant.

II.

THE FACTS

[44]

I largely agree with my
colleagues recitation of the facts. However, I must say more about certain
topics that are relevant to the errors that I have found. Accordingly, I will
outline the evidence presented during the Crowns case in-chief, the defence
theory of the case, the Crown objection raised after the defence closing, the
trial judges ruling on the Crown objection, the manner in which the issue of
the
CEA
electronic evidence
provisions was raised, and the trial judges reasons for judgment.

A.

THE CROWNS CASE IN-CHIEF

[45]

As my colleague has explained, the
Crowns case in-chief consisted of the testimony of four officers. Only two of
those officers, Officer Dietrich and Officer Varey, actually attended the
property to execute the search warrant. Officer Dietrichs evidence largely
concerned the drugs seized. He testified that he had no direct contact with
either the appellant or his son, C.H., during the search. Thus, the Crowns
main witness on the events of the search itself was Officer Varey.

[46]

On the evidence of Officers Dietrich
and Varey, the appellant was one of seven people present on the property at the
time of the search. The other persons included the appellants son C.H., a
young man, a couple and their young daughter, and a woman whom the police
believed to be the appellants common law spouse. The police arrested the
appellant and C.H. Officer Varey testified that he released the other five
persons present at the residence at the time of the search after they denied
any knowledge or involvement of the items seized. The Crown did not call any of
these persons as witnesses.

[47]

Officer Varey could not identify
that any of the propertys six bedrooms belonged to the appellant. He easily
identified the bedroom of the couple and their baby, as a crib was located in
this bedroom and there was a Hydro One bill with the name of the babys mother
on it. He also identified a bedroom as belonging to C.H. because the police
located C.H. in that room. Furthermore, Officer Varey identified a bedroom as
belonging to the woman the police believed was the appellants common law
spouse. Officer Dietrich explained that the basis of this identification was
that the woman had exited that bedroom and entered the living room when the
police arrived. Officer Varey testified that he was not sure to whom two of the
other bedrooms belonged. In cross-examination, he conceded that he was not sure
in which bedroom the appellant was sleeping. He also testified that, aside from
the oxycodone and marijuana bag that the appellant conceded to possessing, there
was nothing in the disclosure that indicated that any of the other items the
police found were in the appellants possession.

[48]

The police also failed to seize
the cell phone in the appellants possession at the time of the search. Officer
Varey testified that he believed that all three phones that the police did
seize, including the Samsung phone that the police subsequently extracted the
electronic data from, belonged to C.H.

[49]

Nor did the police find drugs on
the appellant. As my colleague explains, the ounce of cocaine was found in a
small closed safe in the basement. That safe was found on a table cluttered
with old pipes, lighters, cigarette butts, and pop cans. Two marijuana plants
were found in the backyard growing in flowerpots. The remaining 48 plants were
found behind the house in a farm field. The appellant only acknowledged
possessing the oxycodone pills in a book bag and the bag of marijuana in the
living room. He confessed to possessing these pills and the marijuana bag after
Officer Varey told him that the police would otherwise rip apart the house.

B.

THE DEFENCE THEORY OF THE CASE

[50]

In closing arguments, defence
counsel made clear that his theory of the case was that there was insufficient
evidence to link the appellant to the residence and thus to the drugs found on
that property. My colleague has already detailed the hearsay objections that
defence counsel raised. I would note that the hearsay objections were intended
to support defence counsels central argument on insufficiency of proof. In his
ruling on the Crown objection, the trial judge himself characterized
insufficiency of proof as the defence theory.

[51]

I will provide additional context
to the defence objection that targeted the appellants disclosure of his cell
phone number to Officer Varey. This was the first item of evidence that defence
counsel targeted with a hearsay objection in his closing. He submitted that if
this was inadmissible, then the Crowns case contained insufficient proof that
the appellants phone number was the same as the number listed on C.H.s phone.

[52]

Defence counsel focused the
remainder of his closing on the insufficiency of proof of residence. He
highlighted that that Officer Varey was not sure which bedroom belonged to the
appellant and could not link any of the seized items to him. The police seized
no documentary evidence that showed the appellant was a resident. The only
documentary evidence relevant to residence was the Hydro One bill in the name
of the mother of the baby. There were no drugs on the appellants person and no
fingerprints on the safe in the basement. The Crown failed to call C.H. or any
of the other six persons found on the property at the time of the search to
give evidence that the appellant was a resident. The statement by Officer Varey
that the appellant was a target of the search warrant was insufficient to prove
residency. Without proof of residency, the Crown could not prove that the
appellant possessed the drugs found in the basement and the farmers field.

C.

THE CROWNS OBJECTION AND THE DEFENCE RESPONSE

[53]

Immediately following the defence
closing, the Crown vigorously objected to the appellants argument on the
insufficiency of proof of residence and the admissibility of the appellants
disclosure of the 6847 number. The insufficiency of proof of residence was the
very first issue that the Crown raised, and was closely followed by the
disclosure of the 6847 number. The Crown argued that had the appellant
cross-examined Officers Dietrich and Varey on the issue of residence, those
officers would have provided the further proof of residence that defence
counsel submitted was missing. The Crown characterized defence counsels
late-breaking admissibility objection as a breach of the rule in
Browne
v. Dunn
(1893), 6 R. 67 (H.L.).

[54]

In response, defence counsel
repeatedly submitted that he was not required to point out to the Crown the
deficiencies in its case in his cross-examination of Crown witnesses. Defence
counsels first concern was that such cross-examination would alert the Crown
to weaknesses in its case that it could fill by calling additional witnesses.
As defence counsel submitted:

Im not required to point out weakness that alert [the Crown]
to their weakness that can be remedy by next day by a witness, a civilian
witness that theyre clearly lacking. So thats not the violation of
Browne
and Dunn
. Thats letting the witness give his evidence and seeing if the
Crown fails to call sufficient evidence.

[55]

Defence counsel also expressed
concern that it was not his job to potentially elicit further incriminating
evidence in cross-examination. Instead, he was entitled to hold the Crown to
its onus to prove its case on residence. As he submitted:

[The officers] cant just say my client lived there. The
Crown has got to prove the case. Phone bills, ID. Its not up to me.Its
fundamental to the elements of the various offences, the production and the
[two counts of possession for the purpose of trafficking] to prove hes a
resident. Its not my job to assist the Crown and say, could you give us more
detail on why you think he lives there?

[56]

Defence counsel returned to this
theme again. As he stated:

As for whether my client was a resident or lived there, I dont
have to flush out the Crowns case. Thats fundamental to the elements of
possession. Possession, control would have to put him thereand its not my job
to do that.

D.

BROWNE V. DUNN
RULING & REOPENING OF CROWNS CASE

[57]

In his
Browne v. Dunn
ruling, the trial judge characterized both the
evidence of Officer Varey on residence and the appellants disclosure of the
6847 number as important evidence. He stated that leading evidence connecting
the appellant to the residence was important to the Crowns case because it
linked the appellant to the drugs found on the property. He concluded that
proving a nexus between the appellant and the residence was clearly a critical
and necessary task faced by the Crown. Likewise, the trial judge found that
the appellants disclosure of the 6847 number was potentially important
because it could link the appellant to the cell phone conversations with C.H.
He characterized both the residency evidence and the disclosure of the 6847
number as matters of substance, indeed potentially critical points of the
Crowns case.

[58]

The trial judge ultimately found
the appellant breached the rule in
Browne v. Dunn
by raising a hearsay objection in closing argument.
The trial judge ruled that defence counsel had failed to cross-examine Officer
Varey on whether the appellant lived at the residence or on the 6847 number.
The trial judge then referred to this courts decision in
R. v.
Quansah
, 2015 ONCA 237, 125 O.R. (3d) 81,
leave to appeal refused, [2016] S.C.C.A. No. 203. He interpreted the hearsay
admissibility objection to Officer Vareys evidence that defence counsel raised
in closing argument as a challenge to Officer Vareys evidence that engaged the
rule in
Browne v. Dunn
.

[59]

To remedy the breach, the trial
judge determined that it was necessary to recall Officer Varey. He permitted
the Crown to reopen its case by recalling Officer Varey. The trial Crown
elicited considerable evidence from Officer Varey on recall. Officer Varey
testified that the appellant had control of a large dog and had a clear
knowledge of the layout of the residence. Officer Varey also gave evidence that
the appellant told him that the bag containing the oxycodone also contained
paperwork that related to the appellants roofing company. Finally, Officer
Varey testified that outside the residence he found numerous generators and
ladders that were consistent with the appellants roofing business.

E.

LATE RAISING OF THE
CEA
ELECTRONIC EVIDENCE PROVISIONS ISSUE

[60]

The trial judge only raised the
issue of compliance with the electronic evidence provisions of the
CEA
after the close of the Crowns reopened case. Nearly
a month after hearing the recall evidence of Officer Varey, the trial judge
wrote a letter to counsel. In this letter, he raised for the first time the
issue of how the admissibility of the text messages interacted with the
provisions of the
CEA
. The trial
judge invited additional submissions on both the
CEA
electronic evidence provisions and other
admissibility-related issues.

[61]

Following this letter, defence
counsel promptly took the position that the Crown had failed to comply with the
best evidence rule in ss. 31.2-31.3 of the
CEA
and that the text messages were thus inadmissible. In
written submissions, defence counsel argued that the Crown could not rely on
the s. 31.3(b) adverse party presumption to satisfy the best evidence rule
because C.H. was not a co-accused. Two weeks later, the Crown provided its
written submissions. The sole basis that the trial Crown relied on to satisfy
the best evidence rule was the s. 31.3(b) adverse party presumption. The Crown
reasoned that the adverse party presumption applied because C.H. was a party to
the offences the appellant was charged with. The defence elected not to provide
supplementary written argument.

F.

REASONS FOR JUDGMENT

[62]

In his reasons for judgment, the
trial judge relied on both the s. 31.3(b) presumption and the appellants
disclosure of the 6847 number to Officer Varey to hold that the text messages
were admissible. He adopted the Crowns argument that the s. 31.3(b) adverse
party presumption applied because C.H was a party to the offence. He therefore found
that the Crown had satisfied the best evidence rule. The trial judge also
stated that the appellants disclosure of the 6847 number to Officer Varey was
important evidence that permitted the Crown to link the phone number listed
as dad on C.H.s phone to the appellant. He then accepted that this evidence
linked the appellant to the 6847 number. Accordingly, he accepted the Crowns
argument that the messages from the 6847 number to C.H. were admissible as
party admissions, and admitted C.H.s messages to the 6847 number either on
the basis of apparent common design relating to the drugs, or simply to provide
context to the [appellants] statements.

[63]

The trial judge also made findings
of fact on the issue of residence, including many based on Officer Vareys
recall evidence. He accepted Officer Vareys original evidence that the
appellant answered the door. He also found that Officer Varey was able to
detail a number of ways in which the [appellant] appeared linked to the
property in his recall evidence. The trial judge thus accepted Officer Vareys
recall evidence that connected the appellant to the property in the following
three ways:

1)

The appellant had
apparent control of a large dog located at the home;

2)

The appellant appeared
to know the layout of the home; and,

3)

Roofing supplies,
consistent with the appellants business as a roofer, were found in a room of
the home.

[64]

The trial judges findings of fact
on residence and his admission of the text messages all flowed into his
reasoning process that led him to convict the appellant. The trial judge stated
that he concluded the Crown had proven the production charge and the two
possession for the purpose of trafficking charges based on all of his findings
of fact, including the findings on residence that I have outlined above. He
also identified two specific grounds for his decision. First, he accepted the
evidence of the police witnesses, including Officer Varey. Second, he concluded
that the text messages exchanged were those of the appellant and C.H. As I have
explained, the trial judge based this finding on the appellants disclosure of
the 6847 number to Officer Varey.

III.

ERROR IN REOPENING OF CROWNS CASE WARRANTS RETRIAL

[65]

I do not share my colleagues view
that the proviso can save the trial judges serious error in allowing the Crown
to reopen its case. I reach this conclusion for the following reasons:

a)

The trial judge erred
in law by permitting the Crown to reopen its case; and,

b)

The curative proviso
cannot save this error because the other evidence against the appellant was not
overwhelming.

A.

TRIAL JUDGE ERRED IN LAW BY REOPENING THE CROWNS CASE

[66]

First, the trial judge erred in
law by reopening the Crowns case. The late-breaking defence objection to
admissibility did not trigger the rule in
Browne v. Dunn
, and did not justify recalling Officer Varey to fill
gaps in the Crowns case. There was no basis for the trial judge to reopen the
Crowns case as his discretion to do so was exceedingly narrow and none of the
exceptions that would justify reopening applied.

(1)

Late-Breaking Admissibility Challenge Did Not Warrant Reopening

(a)

Appropriate Remedy Was to Decline to Entertain Admissibility Challenge

[67]

I agree with the Crown that the
defence counsel at trial acted improperly by failing to raise admissibility
objections to the Crowns evidence until his closing address. Objection to the
admissibility of evidence should be taken when the evidence is tendered, not at
the end of trial:
R. v. Gundy
,
2008 ONCA 284, 231 C.C.C. (3d) 26, at para. 20.

[68]

However, the appropriate remedy
here would have been for the trial judge to refuse to allow defence counsel to
challenge the admissibility of the Crowns evidence. The trial judges
discretion to permit or decline a late-breaking admissibility challenge depends
on whether the challenge will serve the interests of justice:
Gundy
, at para. 22. Here, the interests of justice did not
favour permitting the admissibility challenge because, had timely objection
been taken, the trial Crown could have called additional evidence:
Gundy
, at para. 23. Accordingly, the trial judge could have
simply declined to permit the appellants admissibility challenge. This made it
unnecessary to recall Officer Varey.

(b)

No Breach of the Rule in
Browne v. Dunn

[69]

Instead of declining to permit the
appellants admissibility challenge, the trial judge erred in law by
characterizing the objection defence counsel made as a breach of the rule in
Browne
v. Dunn
. As this court held in
R.
v. Henderson
(1999), 44 O.R. (3d) 628
(C.A.), at p. 636, the rule in
Browne v. Dunn
only applies if counsel is going to
challenge the
credibility of a witness
by calling contradictory evidence (emphasis
added), and then fails to cross-examine that witness on the point counsel
intends to impeach the witness on. However, defence counsel did not question
the credibility of Officer Vareys evidence that the appellant was a target. He
only stated that Officer Vareys evidence was hearsay and was insufficient to
prove residency. The late-breaking submission that Officer Vareys evidence was
hearsay was improper, but it is properly dealt with as an improper
admissibility objection, not under the rule in
Browne v. Dunn
.

[70]

The trial judge appears to have
interpreted this courts decision in
Quansah
as standing for the proposition that failure to
cross-examine a witness on a specific point will trigger the rule in
Browne
v. Dunn
if the defence mounts any challenge
to the witnesss evidence, including an admissibility objection. This was in
error.
Quansah
affirms this
courts holding in
Henderson
that the rule in
Browne v. Dunn
only applies if a party intends to impeach a witnesss evidence:
Quansah
, at

para. 75. Likewise, in
R. v.
Lyttle
, 2004 SCC 5, [2004] 1 S.C.R. 193, at
para. 64, the Supreme Court held that the rule applies to witnesses whom the
cross-examiner intends to impeach: at para. 64. Here, defence counsel did not
attempt to impeach Officer Vareys evidence but simply asserted that it was
both inadmissible and insufficient to establish guilt.

(2)

No Basis to Reopen the Crowns Case

[71]

The trial judge further erred in
law by permitting the Crown to reopen its case. As I will explain, this decision
violated settled and fundamentally important rules governing the reopening of
the Crowns case.

(a)

Restrictive Approach to Reopening

[72]

The law takes a more liberal
approach to reopening in civil cases and in criminal cases where the accused
seeks to reopen prior to the entering of a conviction. In civil cases, as
Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst explain in
The
Law of Evidence in Canada
, 5th ed. (Toronto:
LexisNexis Canada Inc., 2018), at para. 16.237, the trial judge has a
relatively wide discretion to permit reopening as long as it is the reasonable
and proper course to follow. Similarly, if the accused seeks to reopen the
defence case prior to the entering of a conviction, the trial judge may make a
discretionary decision to permit reopening:
R. v. Hayward
(1993), 86 C.C.C. (3d) 193 (Ont. C.A.), at p. 197.
The trial judge must consider whether the evidence is relevant to a material
issue, whether there would be prejudice to the Crown, and the effect of
reopening on the orderly and expeditious conduct of the trial:
Hayward
, at pp. 197-198. As S. Casey Hill, Louis P. Strezos
& David M. Tanovich write in
McWilliams Canadian Criminal
Evidence
,
loose-leaf (Release 2019, No. 2), 5th ed. (Toronto: Thomson Reuters
Canada, 2013), at para. 21:70.10, given the importance of the right to make
full answer and defence, the trial judge should be slow to dismiss the
application merely because counsel exercised something less than complete due
diligence in attempting to put the evidence before the court during the defence
case.

[73]

Not so in criminal trials where
the Crown, rather than the accused, seeks to reopen. The importance of fairness
to the accused causes the law to strike a different balance. As the Supreme
Court explained in
R. v. G. (S.G.)
, [1997] 2 S.C.R. 716, at para. 29, courts recognized the dangers that
allowing the Crown to reopen its case posed well before the adoption of the
Canadian
Charter of Rights and Freedoms
. In light of
the
Charter
, courts must be
even more vigilant in protecting those interests.

[74]

In a criminal trial, the
prosecution has the obligation to present all the relevant evidence in its case
in-chief. As this court explained in
R. v. Campbell
(1977), 17 O.R. (2d) 673 (C.A.), at p. 693, The
general rule with respect to the order of proof is that the prosecution must
introduce all the evidence in its possession upon which it relies as probative
of guilt, before closing its case. Ordinarily the prosecution may not present
additional evidence after it closes its case. Furthermore, only after the
prosecution closes its case must the accused decide whether to call evidence or
testify.

[75]

There are two exceptions to this
general rule: applications to call reply evidence and applications to reopen
the Crowns case. These exceptions are close cousins, but not identical
twins:
G. (S.G.)
, at para. 39
(citations omitted). An application to call reply evidence is appropriate where
the new evidence relates to a matter that arose out of the defence case and the
prosecution could not have foreseen its development:
G. (S.G.)
, at para. 39. In contrast, an application to reopen
is appropriate where the evidence is relevant to a factual issue that was
material during the Crowns case in-chief and does not relate to any new issue
arising from the defence evidence. In a case of reopening, the onus is on the
Crown to justify why it failed to adduce the evidence during its case in-chief:
R. v. M. (F.S.)

(1996), 111 C.C.C. (3d) 90 (Ont. C.A.), at p. 101. As
the authors of
McWilliams
explain,
at para. 21:60.40.20, an application to re-open is only brought where the
Crown cannot meet the test for reply evidence.

[76]

If the Crown applies to reopen its
case, the courts discretion to permit the reopening narrows as the trial
proceeds because prejudice to the accused increases correlatively. In
R.
v. P. (M.B.)
, [1994] 1 S.C.R. 555, at p.
569, the Supreme Court held that the trial judges discretion to permit
reopening becomes more restricted as the trial progresses through the following
three stages:

1)

Before
the Crown closes its case;

2)

Immediately
after the Crown closes its case but before the defence elects whether or not to
call evidence; and,

3)

After
the defence has started to answer the case against it by disclosing whether or
not it will be calling evidence.

[77]

At the first stage, the trial
judge has broad discretion to permit the Crown to recall a witness because
prejudice to the accused is minimal. At the second stage, while the trial
judges discretion is narrower, reopening may still be granted to correct some
oversight or inadvertent omission by the prosecution, provided that the
interests of justice require this and the defence would suffer no prejudice:
P.
(M.B.)
, at pp. 569-570.

[78]

In contrast, at the third stage,
the trial judges discretion is exceedingly narrow. As Lamer C.J. held in
P.
(M.B.)
, at p. 570, the trial judge may
permit the Crown to reopen its case only in the narrowest of circumstances.
This narrowness cannot be overemphasized:
G. (S.G.)
, at para. 33. At this stage, the presence of
prejudice to the accused is the paramount consideration:
G. (S.G.)
, at para. 36. Prejudice to the accused thus takes priority
over broader societal interests in getting at the truth:
P. (M.B.)
, at p. 570;
M. (F.S.)
, at p. 103.

[79]

As a result of this restrictive
approach, the court may only permit reopening in the two narrow exceptions
outlined in
P. (M.B.)
or in
closely analogous circumstances. In
P. (M.B.)
, at p. 573, the Supreme Court outlined only two
exceptions that might justify departing from the general prohibition against
the Crown reopening its case:

1)

The conduct of the
defence has either directly or indirectly contributed to the Crown's failure to
adduce certain evidence before closing its case; and,

2)

The Crown's omission
or mistake was over a non-controversial issue to do with purely formal
procedural or technical matters, having nothing to do with the substance or merits
of a case.

In
G. (S.G.)
, at para. 35,
the Supreme Court emphasized that courts should only permit reopening beyond
these two exceptions in very exceptional cases that are closely analogous,
because it is manifestly obvious in these cases that there is no prejudice to
the accused.

(b)

Rationales for Restrictive Approach to Reopening

[80]

The Supreme Court has severely
restricted judicial discretion to reopen the case at the third stage precisely
because of the important rationales underlying the prosecutions obligation to
present all the relevant evidence in its case in-chief.

[81]

First, the restrictive approach to
reopening protects the accuseds right against self-incrimination. In
P.
(M.B.)
, Lamer C.J. stated that accused
persons right not to be compelled to assist in their own prosecution is
perhaps the single most important organizing principle in criminal law: at p.
577. It is rooted in the presumption of innocence and the power imbalance
between the state and the individual: at pp. 577-578. The right reflects the
principle that the accused is not obligated to assist the prosecution and that
the state, with its greater resources, has the onus to investigate and prove
its own case: at pp. 578-579.

[82]

This concern about the power
imbalance between the Crown and the accused is particularly important. Accused
persons are often disadvantaged or marginalized:
R. v. Boudreault
, 2018 SCC 58, 429 D.L.R. (4th) 583, at para. 3. If
convicted, they face grave social and personal consequences, including not
only the loss of liberty, but also stigma, ostracism, and social,
psychological, and economic harms:
R. v. Oakes
, [1986] 1 S.C.R. 103, at pp. 119-120. To avoid these
consequences, the accused must confront the great resources of the state. Given
this power imbalance, it is only appropriate to lock the Crown into the case it
presented in-chief, rather than permitting the Crown to modify its case in
response to the case the defence reveals:
P. (M.B.)
, at p. 580.

[83]

Second, the restrictive approach
to reopening protects the accuseds right to make full answer and defence and
right to a fair trial:
G. (S.G.)
,
at para. 38. The specific unfairness that the rule protects against is the
unfair advantage that the Crown gains from splitting its case. Case-splitting
permits the Crown to change its case or fill gaps in its case:
G.
(S.G.)
, at paras. 39, 41.

[84]

Such case-splitting is unfair
first because it prevents the accused from making an informed decision about
whether to call evidence or testify. The law recognizes that the accuseds
right to decide whether or not to testify is fundamentally important, such that
an accused will normally be entitled to a retrial if the accuseds counsel did
not permit the accused to testify when the accused wanted to do so:
R.
v. Cubillan
, 2018 ONCA 811, 143 O.R. (3d)
376, at para. 14. Reopening undermines the accuseds ability to make a
meaningful choice. As the Supreme Court held in
R. v. Biddle
, [1995] 1 S.C.R. 761, at para. 13, the accused is
entitled to know the Crowns full case at the close of the Crowns case
in-chief so that the accused can know the case to meet. This permits the
accused to make the decision to remain silent or testify in the full awareness
of the Crowns case:
Biddle
, at
para. 12, quoting
John v. The Queen
, [1985] 2 S.C.R. 476, at pp. 480-481. As Lederman, Bryant & Fuerst
explain in
The Law of Evidence in Canada
, at para. 16.235, the test for reopening is so restrictive because of
the concern that the accused will have responded to the Crowns case without
knowing the full case to be met.

[85]

In addition, such case-splitting
undermines the importance of the Crowns duty of disclosure to the accused. As
the Supreme Court recognized in
G. (S.G.)
, at para. 46, the defence prepares and presents its
case on the basis of the Crowns disclosure. Accordingly, when the defence
discloses whether or not it will call evidence, it is entitled to assume that
the Crowns case is complete. The defence can reasonably assume that the Crown
would not close its case without adducing all the evidence it considered
necessary to secure a conviction:
G. (S.G.)
, at para. 46. As Martin J.A. wrote in
Campbell
, at p. 693, restricting the Crown from calling new
evidence following the close of its case in-chief helps prevent the accused
from being taken by surprise and permits the accused to properly investigate
the evidence the Crown has called. In this regard, I would adopt the following
statement by LHeureux-Dubé J. in
R. v. Rose
, [1998] 3 S.C.R. 262, at para. 61:

There is a general principle that the Crown should set out its
case, make disclosure, and put forward all its evidence before the accused must
defend against that evidence. The right to prior knowledge of what is contained
in the Crowns evidence and theory of the case is fundamental because it is the
Crowns burden to present evidence sufficient to show guilt beyond a reasonable
doubt. Without knowing the Crowns basic case, the defence would have to put
forward its case in a vacuum, and could not even begin to answer it.

[86]

Furthermore, reopening departs
from the normal rules of the adversarial process. Calling reply evidence is
more consistent with the rules of the adversarial process because the matter
addressed arises out of the defence case in a manner that the Crown could not
have foreseen:
G. (S.G.)
, at
para. 39. This tends to alleviate the prejudice to the accused. There is no
concern about the accused putting forward a defence without knowing the full
case to be met as the reply evidence only became relevant as a result of the
defence evidence:
G. (S.G.)
, at
para. 40. In contrast, evidence called on reopening was relevant to a factual
issue that was material during the Crowns case in-chief, not one that arose
solely out of the defence evidence. As Doherty J.A. wrote in
M.
(F.S.)
, at p. 101, a prosecutor who applies
to reopen the Crowns case is deviating from the normal rules of the
adversarial process and must justify that deviation. Similarly, as the authors
of
McWilliams
state in relation
to an application to reopen, at para. 21:60.40.20,

By definition, the Crown is seeking to call evidence, the clear
relevance of which would have been apparent during its case in-chief. It
follows that allowing the Crown to lead such evidence at the third stage will
usually create the prejudices that the rule against case splitting is designed
to prevent.

[87]

The Supreme Court has also
recognized that the defence faces serious risks in responding to the reopening
of the Crowns case. First, reopening may require the defence to also reopen
and adduce evidence inconsistent with the defences original position, which
prejudices the defence. Second, the defence may not be able at such a late
stage in the trial to address the Crowns enhanced case. As the court
concluded, recalling Crown witnesses and reopening the defence case can never
completely cure the resulting harm to the defence from permitting the Crown to
reopen:
G. (S.G.)
, at para. 44.

[88]

Moreover, it is inappropriate for
courts to speculate that the defence case would not have changed in response to
reopening. As the Supreme Court held in
G. (S.G.)
, at para. 47, this would require the court to
speculate about the evidence the defence would have called and the approach the
defence would have taken to cross-examining Crown witnesses. As these questions
are impossible to determine, courts should not consider whether the defence
would have been different when considering a Crown request to reopen.

(c)

Application

[89]

In this case, the trial judge
correctly characterized the recall of Officer Varey as a reopening of the
Crowns case rather than reply evidence. The evidence Officer Varey gave when
recalled concerning the appellants connection to the residence did not relate
to a matter that arose out of the defence evidence. Indeed, the defence called
no evidence. Instead, Officer Vareys recall evidence included evidence that
tended to establish the accuseds connection to the residence, an element that
was relevant to proving the offences for which the accused was charged: see
R.
v. K.T.
, 2013 ONCA 257, 295 C.C.C. (3d)
283, at para. 65.

[90]

The trial judges discretion to
permit the Crown to reopen its case was exceedingly narrow in this case. The
Crown sought to reopen at stage three of the trial, after the Crown had closed
its case and after the defence had elected not to call evidence. In fact, the
Crown reopened at the latest stage of all, namely after defence counsel had
made his closing submissions. As a result, in determining whether to exercise
his discretion, the trial judge had to prioritize the prejudice to the
appellant from reopening over the societal interest in getting at the truth. He
could only exercise his discretion to permit reopening if there would be no
prejudice to the appellant because one of the
P. (M.B.)
exceptions or a closely analogous situation
prevailed.

[91]

Because neither the
P.
(M.B.)
exceptions nor a closely analogous
situation applied, there was no basis for the trial judge to exercise his
discretion to permit reopening. Neither of the two
P. (M.B.)
exceptions apply to the evidence about the
appellant's connection with the residence that the Crown adduced in its
reopened case. Residence was key to the Crowns case. The Crowns failure to
elicit further evidence from Officer Varey during its case in-chief is thus not
a procedural or technical matter that had no bearing on the merits. Moreover,
all that the Crown faults defence counsel for in regard to the Crown's failure
to adduce evidence about who lived at the house is that defence counsels
cross-examination of Officer Varey suggested that the appellant was not
disputing who lived at the house. Yet, as
P. (M.B.)
states, the defence has no obligation to assist the
prosecution: p. 578. Likewise, while the fact that Crown evidence is
uncontradicted can be a relevant factor for the trier of fact, the defence
remains entitled to argue that even uncontradicted Crown evidence does not
prove the offence beyond a reasonable doubt:
R. v. Noble
, [1997] 1 S.C.R. 874, at paras. 79, 82, 97.
Accordingly, it does not follow that the defence's passive conduct contributed
to the Crown's failure to adduce this evidence.

[92]

In any case, defence counsels
cross-examination of Officer Varey would have made clear to the Crown that the
defence was intending to argue that there was insufficient proof on the issue
of residency. Admittedly, as the trial judge noted, defence counsel never
cross-examined Officer Varey on his statement that the appellant lived at the
property. Yet defence counsel did cross-examine Officer Varey on Officer Vareys
failure to link the appellant to any particular bedroom or to place any of the
various items found in the house in the appellants possession. As defence
counsel stated in one of his questions, theres nothing in this disclosure, as
you say that targets which bedroom is [the appellants] and nothing to indicate
that any of those items I just listed were in [the appellants] possession. In
these circumstances, it is difficult to see how it would have been lost on the
Crown that defence counsel intended to contest the sufficiency of proof on the
issue of residence.

[93]

Moreover, this is not an
appropriate case to recognize a new exception because the reopening clearly
prejudiced the appellant. The appellant was unable to make an informed decision
about whether to call evidence or testify because the Crowns case at the close
of its case in-chief was weaker than it later became when supplemented by
Officer Vareys recall evidence. The appellant was entitled to attack the
sufficiency of that evidence on the assumption that the Crown adduced all the
evidence it considered necessary to secure a conviction in its case in-chief.
When the trial judge permitted Officer Vareys recall, the appellant was
prejudiced. Defence counsels closing submissions on the lack of evidence on
residency drew the trial Crowns attention to an important gap in the Crowns
case. After learning of that gap, the trial Crown then filled the gap through
the recall evidence of Officer Varey. The Crown thus effectively conscripted
the appellant into assisting in his own prosecution.

[94]

Ultimately, this is a case where
the appellant challenged the sufficiency of proof on the evidence connecting
him to the residence, as he was entitled to. There was thus no basis for the
trial judge to permit the Crown to reopen its case.

B.

Proviso Cannot Save Reopening Error

[95]

For the curative proviso in s.
686(1)(b)(iii) of the
Criminal Code
to apply, the Crown must satisfy the court that the verdict would
necessarily have been the same if [the] error had not occurred:
R.
v. Marakah
, 2017 SCC 59, [2017] 2 S.C.R.
608, at para. 74, quoting
R. v. Wildman
, [1984] 2 S.C.R. 311, at p. 328, quoting
Colpitts v. The
Queen
, [1965] S.C.R. 739, at p. 744. As the
Supreme Court explained in
R. v. Sarrazin
, 2011 SCC 54, [2011] 3 S.C.R. 505, at para. 25, the
application of the proviso is restricted to the following two types of cases:

1)

The evidence against
the accused is overwhelming; and,

2)

It can safely be said
that the legal error was harmless because it could not have had an impact on the
verdict.

(1)

The Error Was Not Harmless

[96]

The harmless error category has no
application to the reopening issue, and my colleague does not argue that it
does. As I have explained, in his reasons for judgment, the trial judge noted
that Officer Varey was able to outline a number of ways in which the appellant
appeared linked to the property when he was recalled. The trial judge then made
findings of fact about the appellants connection to the home based on this
recall evidence. He found that the appellant had apparent control of a large
dog and appeared to know the layout of the home, and that roofing supplies
consistent with the appellants trade were found in the home. In his reasons,
the trial judge stated that he based each conviction on his findings of fact,
which included these findings related to the evidence.

[97]

Accordingly, the legal error was
not harmless because the Crown cannot demonstrate that it did not impact the
verdict. It cannot be said that the evidence Officer Varey gave when recalled
was not significant to the determination of guilt or innocence or related to
issues not central to this determination:
R. v. Van
, 2009 SCC 22, [2009] 1 S.C.R. 716, at para. 35;
R.
v. Khan
, 2001 SCC 86, [2001] 3 S.C.R. 823,
at para. 30. In fact, as the trial judge stated in his
Browne v.
Dunn
ruling, the evidence connecting the
appellant with the residence was important to the Crowns case in linking the
appellant to the drugs found there, and proving that connection was clearly a
critical and necessary task the Crown faced.

(2)

The Evidence Against the Appellant Was Not Overwhelming

[98]

Furthermore, I disagree with my
colleague that the evidence against the appellant was so strong as to justify
applying the overwhelming evidence branch of the proviso.

[99]

Courts should be very reluctant to
apply the overwhelming evidence branch of the proviso in cases of reopening. As
I have explained, the rules that generally prohibit reply and reopening form
one of the fundamental precepts of our criminal process and reflect the
principle that the accused must be able to elect whether or not to call
evidence or testify in the full awareness of the Crowns complete case:
Biddle
, at para. 12, quoting
John
, at pp. 480-481. Moreover, as the Supreme Court has
stated in the context of applying the proviso to breaches of the rules
governing reply evidence, The reviewing tribunal cannot, with anything
approaching reality, retry the case to assess the worth of the residual
evidence after the improperly adduced evidence has been extracted from the
record:
John
, at pp. 481-482;
see also
Biddle
, at para. 21.
This court has previously heeded that caution and directed new trials in cases
where the rules concerning reply evidence and reopening were violated, even
where there was considerable evidence against the accused:
M. (F.S)
, at pp. 107-108;
R. v. Diu
(2000), 49 O.R. (3d) 40 (C.A.), at paras. 192-193.

[100]

I would heed these expressions of
caution in this case for two reasons. First, the deficits in the Crowns case
on the issue of residence and the importance placed by both the parties and the
trial judge on Officer Vareys evidence on residence belie the suggestion that
the other evidence was overwhelming. Second, there is a real possibility that
the appellant may have conducted his defence differently had the Crown called
the additional evidence on residence during its case in-chief. As a result, I
cannot with any degree of confidence retry the case and assess the worth of the
remainder of the Crowns case after the improperly adduced reopening evidence
has been set aside.

[101]

First, as the trial judge noted
and both trial counsel understood, proving a connection to the residence was a
critical part of the Crowns case. It is clear that the appellants trial
counsel saw this as a critical issue given his closing argument that the
evidence the Crown tendered in its case on residence was insufficient. The
trial Crowns vigorous objection and successful eliciting of considerable
evidence from Officer Varey on recall confirms that the Crown saw the issue of
the sufficiency of the evidence linking the accused to the residence as equally
significant. Indeed, proving the accuseds connection to a residence is often
central to proving possession and production offences: Robert J. Frater, Bruce
A. Macfarlane & Croft Michaelson,
Drug Offences in Canada
, 4th ed. (Release 2019-2, April 2019),
(Toronto: Thomson Reuters, 2015), at paras. 4:100.60,
7:80.60. Accordingly, the fact that there was evidence showing that the 6847
number was the appellants, that the young person C.H. arrested at the
residence was the appellants son, and the evidence linking both of them to
drug trafficking does not negate the significance of the frailties of the Crown
case on residence.

[102]

Unlike this court, the trial judge
and both trial counsel had a front row seat. They heard witnesses testimony
and experienced the Crowns case-in-chief and the trial as it unfolded: see
Van
,
at para. 36. It follows that when determining whether to apply the proviso, it
is appropriate to consider the importance that both trial counsel and the trial
judge placed on the evidence that was wrongly admitted. The fact that both the
trial judge and trial counsel treated the issue of residence, the deficiencies
in the Crowns initial case on residence, and the recall evidence of Officer
Varey as important commands caution when this court is asked to apply the
overwhelming evidence branch of the proviso.

[103]

I would thus decline to retry the
case. I cannot conclude that the remaining evidence on residence constituted an
overwhelming case against the appellant after extracting the improperly adduced
recall evidence. The extent of the Crowns evidence concerning residence prior
to reopening was that the appellant was a target of the warrant, Officer Varey
thought the appellant lived at the residence, the appellant answered the door
to the residence at 5:45 a.m., and the appellant had personal or family
relationships with the other persons found at the residence.

[104]

The Crowns case on residence
prior to reopening was thus rather thin. As the appellants trial counsel
pointed out, the trial Crown did not adduce any documentary evidence such as
bills, mail, identification documents, or a lease to prove that the appellant
lived in the residence. The only hydro bill that Officer Varey mentioned in his
evidence was not in the name of the appellant. Nor did the trial Crown call any
of the other persons found in the residence to give evidence that the appellant
lived there. I would note that the trial Crown was aware of the deficiencies in
the Crowns case on reopening. The trial Crowns submission that the officers
would have provided additional information linking the appellant to the
residence had they been cross-examined on the basis for their belief that the
appellant lived there makes this clear.

[105]

Moreover, even the evidence that
the Crown did adduce in its case in-chief prior to reopening did not uniformly
tend to show that the appellant lived in the residence. In his
evidence-in-chief, Officer Varey mentioned that the appellant had another
residence in addition to the property searched and that C.H. had lived at this
other residence in the past. Officer Varey also admitted that he did not
identify which bedroom in the target residence belonged to the appellant and in
fact had no idea in which room the appellant was sleeping. It would have been
open to a trier of fact to find this absence of evidence concerning, especially
since the officers were able to identify the bedrooms of five of the other six
persons found on the property at the time of the search.

[106]

Furthermore, my conclusion on this
issue would remain the same even if the text messages were admissible. I agree
with my colleagues that the messages did support the inference that the sender
and recipient lived together and engaged in drug trafficking. However, the
messages never referenced the address of the target residence. As I have noted,
there was evidence that the appellant had another residence and that C.H. had
been living with him there in the past. My colleague points out that the
content of some of the messages corresponded to items found at the residence
when the search warrant was executed, such as the references to a dog and a
pig. Yet in a rural area where dogs and pigs were not uncommon, it would have
been open to the trial judge to find that such references were not particularly
probative on the issue of residence. Accordingly, the text messages, even
coupled with the other evidence from the Crowns case prior to reopening, did
not command the inference that the appellant lived in the residence the police
searched, as opposed to some other residence.

[107]

I also do not agree that this was
solely a text message case and that Officer Vareys evidence concerning
residence was unimportant. The text messages were important evidence. However,
they were only one of the two components in the Crowns case. The other
component was Officer Vareys evidence concerning the execution of the search
warrant that the Crown used to link the appellant to the residence. That
component was also important to the Crowns case. The strength of the Crowns
objection to defence counsels challenge to the admissibility of Officer
Vareys evidence linking the appellant to the residence makes that clear. The
trial judge stated that he saw both Officer Vareys evidence on residence and
the text messages as important evidence. He ultimately relied on both types of
evidence to convict the appellant.

[108]

Even if the evidence in the text
messages was overwhelming, I would still order a new trial because of the real
possibility that the appellant may have conducted his defence differently had
the Crown adduced Officer Vareys recall evidence as part of its case in-chief.
The appellant made the decision not to call evidence or testify in response to
the case the Crown presented in-chief, a case that was thin on the issue of
residence. If that case had been stronger, the appellant may well have
conducted his cross-examination of Officer Varey differently, and he may have
chosen to call evidence or testify. As
G. (S.G.)
teaches, at para. 47, it is improper for this court
to speculate that the appellants defence would not have changed. The fact that
the appellant did not seek to reopen his defence in response to Officer Vareys
recall evidence does not negate this principle because, as
G. (S.G.)
confirms, at para. 44, reopening the defence case
can never completely cure the resulting harm to the defence.

IV.

TEXT MESSAGE ADMISSIBILITY ERROR WARRANTS RETRIAL

[109]

In any case, the trial judge
admitted the text messages on an erroneous basis. He applied a presumption in
the
CEA
that the Crown now
concedes was erroneous. The properly operating presumption in s. 31.3(a) of the
CEA
that the Crown now relies on
was never advanced at trial. In these circumstances, it would be unfair to deny
the appellant a chance to test the admissibility of the text messages at trial.
I am also convinced that there is a reasonable possibility that the trial judge
would not have admitted the messages had he considered the properly operating
presumption. I reach the following two conclusions:

1)

I agree with my
colleague and the Crown that the trial judge erred in law by admitting the text
messages pursuant to the adverse party presumption in s. 31.3(b) of the
CEA
;
and

2)

The proviso cannot
save this error because it would be unfair to deny the appellant an opportunity
to challenge the properly operating presumption in s. 31.3(a) of the
CEA
and there is a realistic possibility that this presumption would not justify
admission.

A.

TRIAL JUDGE ERRED BY RELYING ON THE ADVERSE PARTY PRESUMPTION

[110]

After the close of the Crowns
reopened case, the trial judge invited submissions from the parties on
R.
v. Avanes
, 2015 ONCJ 606, 25 C.R. (7th) 26,
a case concerning the

CEA

provisions on electronic
evidence. This was the first point at which counsel considered these provisions.
The trial judge was right to direct counsels attention to the electronic
evidence regime contained in ss. 31.1 through 31.8 of the
CEA
. Compliance with the authentication and best evidence
provisions in ss. 31.1-31.2 of the
CEA
is mandatory:
CEA
, s.
31.7;
R. v. Ball
, 2019 BCCA 32,
371 C.C.C. (3d) 381, at para. 68.

[111]

At issue here are the best
evidence provisions of the
CEA
electronic evidence regime. My colleague has helpfully outlined these
provisions. In this case, as she explains, the Crown relies on s. 31.2(1)(a),
which provides that the best evidence rule is satisfied on proof of the
integrity of the electronic documents system by or in which the electronic
document was recorded or stored:
CEA
, s. 31.2(1)(a). Section 31.3 of the
CEA
then outlines three presumptions by which, in the
absence of evidence to the contrary, integrity under s. 31.2(1)(a) of the
CEA
is proven:

(a) by evidence capable of supporting a finding that
at all material times the computer system or other similar device used by the
electronic documents system was operating properly or, if it was not, the fact
of its not operating properly did not affect the integrity of the electronic
document and there are no other reasonable grounds to doubt the integrity of
the electronic documents system;

(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; or

(c) if it is established that the electronic document
was recorded or stored in the usual and ordinary course of business by a person
who is not a party and who did not record or store it under the control of the
party seeking to introduce it.

[112]

The only presumption that the
Crown relied on at trial was the s. 31.3(b) adverse party presumption. The
Crown argued that this presumption applied because, even though C.H. was not a
party to the proceedings, he was a party to the offence. The defence argued it
did not apply because C.H. was not a co-accused. The trial judge accepted the
Crowns argument and found that the Crown had proved the integrity of the
electronic data extracted from the Samsung cell phone pursuant to s. 31.3(b).
He did not consider any other bases for proving the text messages integrity.

[113]

It is common ground between the parties
that the trial judge erred in holding that the best evidence provision was
satisfied on the basis of the adverse party presumption of integrity in s.
31.3(b) of the
CEA
. The
rationale for the adverse party presumption is that the opposing party, as the
source of the information, is best-situated to know the capacities of its
electronic document system and will be best able to adduce evidence to rebut
the presumption: Gerald Chan & Susan Magotiaux,
Digital
Evidence: A Practitioners Handbook
(Toronto: Emond, 2018), at p. 172. Here, the cell phone did not belong to the
appellant and the police, not him, had access to its contents following its
seizure. Accordingly, the adverse party presumption does not apply.

B.

PROVISO CANNOT SAVE ADMISSIBILITY ERROR

[114]

The Crown argues that the curative
proviso should save this error because the presumption that the device was
operating properly outlined in s. 31.3(a) of the
CEA
does apply. The Crown submits that the evidence
demonstrates that at all material times the cell phone was either operating
properly or operating in a manner that did not affect the integrity of the text
messages.

[115]

I would not accept this argument.
Deciding this issue on appeal when the Crown never raised the application of s.
31.3(a) at trial would be unfair to the appellant and deny him the ability to
challenge the admissibility of critical evidence. Even if it were appropriate
to decide this issue on appeal, I am convinced that there is a reasonable
possibility that the trial judge would have concluded that the s. 31.3(a)
presumption did not apply if the parties had directed his attention to it.

(1)

Inappropriate to Consider on Appeal

[116]

First, I would not accept this
argument because the Crowns decision to advance the s. 31.3(a) presumption for
the first time on appeal denied the appellant the opportunity to test the
admissibility of the evidence under this presumption at trial. The trial Crown
made no reference to s. 31.3(a) in her submissions to the trial judge and only
relied on the s. 31.3(b) adverse party presumption. Accordingly, the defence
had neither the need nor the occasion to make submissions on the application of
s. 31.3(a) at trial.

[117]

I agree with my colleague that the
Crown may sometimes be entitled to take a different position as a respondent on
appeal than it did at trial if it wishes to argue that the error relied on by
the accused is harmless:
R. v. Suarez-Noa
, 2017 ONCA 627, 139 O.R. (3d) 508, at para. 29, leave
to appeal refused, [2018] S.C.C.A. No. 142.

[118]

However, it is appropriate for
appellate courts to be cautious when asked by the Crown on appeal to find that
evidence would have been clearly admissible on a certain basis the Crown never
explored that basis at trial. To draw the conclusion that the evidence would
necessarily have been admissible in all but clear cases would undermine
fairness to the accused and deny the accused a chance to test the evidences
admissibility:
R. v. Berhe
, 2012
ONCA 716, 113 O.R. (3d) 137, at para. 27. This fairness concern is especially
salient when dealing with novel legal issues such as the admissibility of
electronic documents. This court has not previously considered the best
evidence rule for the admission of electronic documents under the
CEA
in any detail. Indeed, in this case, both counsel
were unfamiliar with the
CEA
requirements until the trial judge raised this issue.

[119]

I cannot share my colleagues
conclusion, at para. 30 of her reasons, that there is no unfairness to the
appellant because he was on notice of the opportunity to challenge the
admissibility of the text messages through adducing evidence at the trial. In a
criminal trial, as I have explained, the Crown must first reveal its case in-chief.
Only then is the defence required to choose whether and how to respond to that
case in-chief. In this case, it is clear that the onus was on the Crown to show
that the requirements of admissibility in the
CEA
were met:
Ball
, at para. 70. It was for the defence to respond to the case for
admissibility that the Crown presented at trial, not to somehow foresee and
pre-emptively respond to the case for admissibility the Crown now presents on
appeal. If the defence believed that the Crowns case for admissibility was
rooted in a fatal legal error, then it was entitled to simply identify that
legal error rather than also contest an additional issue that would only arise
if the defence was wrong about that legal error.

[120]

Here, the defence cannot be
faulted for responding to the case for admissibility the Crown presented at
trial in the way it did. As I have mentioned previously, the trial judge only
raised the
CEA
best evidence
provisions with the parties after the Crown closed its reopened case and after
the defence had elected not to call evidence. The defence argued that the only
presumption the trial Crown put forward and the trial judge ultimately relied
on did not apply as a matter of law. The Crown now concedes that the defence
was correct in so arguing. In these circumstances, it is unfair to fault the
defence for not calling evidence to the contrary. The defence cannot be faulted
for mounting what should have been a successful response to the only best
evidence presumption that the Crown presented at trial.

(2)

Not Clear that Text Message Would Be Admitted under s. 31.3(b)

[121]

Together with these fairness
concerns, I would note that there were significant deficiencies in the evidence
in the Crowns case relevant to the s. 31.3(a) presumption. Accordingly, there
is a reasonable possibility that the trial judge might have not have admitted
the text messages pursuant to s. 31.3(a).

[122]

Clearly the overwhelming evidence
branch of the proviso has no application, and my colleague does not argue that
it does. As the trial judge recognized, without the text messages the Crowns
case would be very weak.

[123]

The Crown is thus left to rely on
the harmless error branch of the proviso. This requires it to show that the
verdict would necessarily have been the same if [the] error had not occurred:
Marakah
, at para. 74 (citations omitted). I am not convinced
that the Crown can meet this high bar.

[124]

I begin with the purpose of the
best evidence rule in the
CEA
.
The objective of the best evidence rule is to assist with the verification of
the integrity of an electronic document, namely to ensure that its contents
accurately reflect the information originally inputted into the computer system
by its author:
R. v. Hirsch
,
2017 SKCA 14, 353 C.C.C. (3d) 230,

at para. 23;
Ball
, at para. 73.

[125]

I accept the Crowns submission
that Canadian courts have taken a functional approach to the properly operating
presumption in s. 31.3(a):
Ball
,
at para. 75. The s. 31.3(a) presumption can be satisfied on the basis of lay
evidence: Chan & Magotiaux, at p. 172. Moreover, it may be satisfied by
either direct or circumstantial evidence:
Ball
, at para. 73. As Paciocco J.A. has written
extrajudicially, the bar is similar to the
prima facie
case standard: David M. Paciocco, Proof and
Progress: Coping with the Law of Evidence in a Technological Age, (2013) 11
Can. J.L. & Tech. 181, at p. 204. I thus agree with my colleagues
conclusion, at para. 25 of her reasons, that the threshold in s. 31.3(a) is
lower than the threshold in s. 31.3(b). I also agree with my colleagues
holding, at para. 28 of her reasons, that there is no requirement that in every
case the Crown call a lay witness to verify the content of the text messages or
provide evidence of testing the text messaging system.

[126]

Where I part ways with my
colleague is her conclusion that the trial judge would have inevitably
concluded that the s. 31.3(a) presumption was met if he had considered it. In
my view, my colleagues conclusion overlooks the deficiencies in the evidence
in the Crowns case that is relevant to this presumption. It also overlooks the
requirement in the text of s. 31.3(a) that the evidence be capable of
supporting a finding that the system was operating properly at all material
times. A review of both the jurisprudence and the scholarship on the s.
31.3(a) presumption indicates that these deficiencies were potentially
significant. Had the trial judge considered the s. 31.3(a) presumption, there
is a reasonable possibility that he may have found that the Crown had not met
the threshold.

[127]

One important way of satisfying
the s. 31.3(a) presumption is for a lay witness to provide evidence that the
system the witness used to send and receive the messages was properly operating
such that the messages displayed corresponded to what the lay witness remembers
sending and receiving. For instance, in
R. v. Donaldson
, 2016 CarswellOnt 21760 (Ct. J.), Paciocco J. (as he
then was) held that, for the s. 31.3(a) presumption to apply, the evidence
should tend to show not only the nature of the electronic document system used,
but also evidence that the system has been historically successfully used: at
para. 9. Similarly, Paciocco J.A. has written extrajudicially that if a witness
provides evidence that a text message was received on a phone to show that the
system was functioning properly, this will usually satisfy the s. 31(3)(a)
presumption: Paciocco, Proof and Progress, at p. 205.

[128]

Such lay evidence that the
messaging system was successfully used and that the messages displayed
corresponded to what the witness recalled sending or receiving has formed the
basis for satisfying the s. 31.3(a) presumption in recent cases. In
R.
v. Soh
, 2014 NBQB 20, 416 N.B.R. (2d) 328,
the Crown sought to admit text messages the complainant and accused had
exchanged. The court found these messages satisfied the best evidence rule
because the complainant both explained how Facebook worked generally and then
gave evidence that Facebook was working properly when she exchanged the
messages in question with the accused: paras. 28-30. Likewise, in
R.
v. K.M.
, 2016 NWTSC 36, the Crown sought to
admit printouts of time-stamped Facebook messages exchanged between the accused
and a Crown witness. The Crown witness gave evidence that the computer he was
using functioned properly, that he exchanged the messages in question with the
accused, and that the time stamps corresponded to the actual time in the
community in question: paras. 15-18. The court found that the messages
satisfied the s. 31.3(a) presumption based on the witnesss testimony that the
computer worked properly at the time he used it to send the messages: para. 40.

[129]

In contrast, in this case there is
no comparable evidence to support a finding that the phone was properly
operating at the time the messages were sent. C.H. was compellable, but the
Crown did not call him to give evidence that he had successfully sent and
received the text messages. While the Crown was not required as a matter of law
to call C.H. in order to satisfy the s. 31.3(a) presumption, the Crowns
failure to do so would have been a relevant consideration for the trial judge.
At para. 23 of her reasons, my colleague points to Officer Vareys statement
that the cell phone was working when he seized it. However, the Crown did not
elicit further evidence from him about what this meant. Officer Varey thus did
not give evidence that the phone was able to successfully send and receive
messages that displayed what the user inputted at the time of seizure, much
less that the phone was able to do so at the time when the messages the Crown
sought to rely on were sent and received. This is a significant difference from
Soh
and
M.K.
, especially given the statutory language in s.
31.3(a) that the evidence must support a finding that the computer system was
operating properly at all material times.

[130]

In fact, this case has features
similar to the British Columbia Court of Appeals decision in
Ball
, where the court decided that there was a realistic
possibility that the trial judge might have excluded Facebook messages had the
trial judge considered the s. 31(3)(a) presumption. Neither the parties nor the
trial judge in
Ball
had
considered the requirements of the
CEA
at the investigative or trial stages: para. 82. In that case, the Crown
sought to rely on the accuracy of the time stamps, but the Crown witness who
had exchanged the messages with the accused did not provide evidence that the
time stamps accurately reflected the local time. On this basis, the court
distinguished the case from cases such as
K.M.
where messages were admitted: paras. 84-85.
Similarly, in this case, the trial judge and the parties did not turn their
minds to the requirements of the
CEA
until all the evidence was in. They then considered a provision that is
now conceded does not apply and never turned their minds to the requirements of
s. 31.3(a). Likewise, Officer Varey did not provide evidence that the extracted
messages matched what had originally been inputted into the phone, and the
Crown did not call C.H. or any other witness to provide such evidence.

[131]

The Crown and my colleague point
to the considerable evidence tending to show that the data extracted was an
exact copy of the data found on the cell phone at the time of seizure, along
with the evidence that the messages were exchanged with a phone number associated
with the appellant. I agree with my colleague that this evidence tends to show
that the messages were exchanged between the appellant and C.H. and that
whatever information contained on the cell phone at the time of its seizure was
accurately extracted. However, this evidence does not assist the court in
determining whether the data on the cell phone accurately reflected the
information originally inputted into the cell phone by the appellant and C.H.,
or whether the cell phone was properly operating at the time when the messages
were sent and received. It thus is not fully responsive to the purpose of the
best evidence rule, namely to ensure that the present contents of the system
accurately reflect the information originally inputted into it.

[132]

The Crown and my colleague also
stress that the evidence that the text messages are stored in a customary
format supports the inference that the phone was working properly. I am not
convinced that the trial judge would have necessarily placed significant weight
on this factor. In
Ball
, the
Facebook messages were also time-stamped and arranged in chronological order,
but the court emphasized that there was no evidence confirming that the time
stamps were accurate or reliable: paras. 84-85. This factor contributed to the
courts conclusion that there was a realistic possibility that the trial judge
may have excluded the use of the Facebook messages if the trial judge had
considered the
CEA
provisions:
para. 87.

[133]

The Crown further submits that
this court should simply take judicial notice that cell phones can send and
receive text messages and that the content of a text message on a cell phone is
not altered by the passage of time. I do not understand my colleague to endorse
this argument but I will nonetheless address it.

[134]

I am not convinced that a trial
judge would necessarily have admitted the messages on the basis of judicial
notice. As noted previously, Paciocco J.A. has suggested that lay evidence
should form the basis to satisfy the presumption in both his academic writing
and a decision when he was a trial judge. While such lay evidence could be
coupled with judicial notice that a cell phone can generally send and receive
texts, I do not read Paciocco J.A. to suggest that judicial notice is a
sufficient basis: Paciocco, Proof and Progress, at p. 205;
Donaldson
, at para. 9.

[135]

Nor do I accept the Crowns
submission, adopted by my colleague, that the nature of the conversation
contained in the text messages compels a finding that the s. 31.3(a)
presumption is met. The Crown submits that the text messages show the back and
forth dialogue characteristic of ordinary conversation, relying on
R.
v. Tello
, 2018 ONSC 356. However, in
Tello
, the court did not appear to consider the
requirements of the
CEA
.
Moreover, in that case, the police officers who were involved in sending and
receiving the text messages to the accused that the Crown sought to admit
testified that the photographs of these text messages accurately displayed the
text message they sent or received. The court admitted the photographs of the
text messages primarily on the basis of this testimony: para. 12. I would also
note that in
Ball
, the messages
also appear to have had the characteristics of back and forth dialogue, but the
British Columbia Court of Appeal still held that the requirements of s. 31.3(a)
were not met: see para. 10.

[136]

The Crowns burden to establish
that a retrial is unnecessary is high:
Sarrazin
, at para. 28. Yet the Crowns case on the s. 31(3)(a)
presumption lacks evidence found in cases where that presumption was satisfied,
namely evidence from a witness that the messages corresponded to what the
witness recalled sending or receiving. Moreover, the fact that the trial judge
only raised the
CEA
electronic
evidence provisions after all the evidence was in, combined with the Crowns
failure to raise the s. 31(3)(a) presumption at trial, deprived the appellant
of the ability to test the admissibility of the evidence under this
presumption. It is not clear to me on this record that all the prerequisites of
admissibility under s. 31.3(a) were established to the necessary standard. In
these circumstances, I cannot share my colleagues opinion that the trial
judges error in relying on the s. 31.3(b) presumption was a minor error that
could not have affected the outcome.

[137]

In the end, I would echo the
caution the British Columbia Court of Appeal expressed in
Ball
, at para. 88. Like Mr. Ball, the appellant faced
serious charges and was entitled to be tried on only carefully scrutinized and
plainly admissible evidence, particularly where that evidence was critically
important, as it was here. To hold that s. 31.3(a) would plainly be met and
deny the appellant a new trial despite the failure of the Crown to raise s.
31.3(a) below and the deficiencies in the evidence relevant to this issue would
deprive the appellant of an important procedural protection, thus
compromising the fairness of these proceedings.

V.

FAILURE TO HOLD
VOIR DIRE
WARRANTS RETRIAL

[138]

Finally, I would hold that the
trial judge erred in law by failing to hold a
voir dire
to determine the admissibility of the appellants
disclosure of his cell phone number to Officer Varey, and that this error warrants
a new trial. I reach this conclusion for the following two reasons:

1)

The trial judge erred
in law in failing to hold a
voir dire
in relation to the disclosure of
the 6847 number to Officer Varey because the appellant never expressly waived
the
voir dire
;

2)

The proviso cannot
save this error because the disclosure of the 6847 number was important
evidence that played a central role in the trial judges reasoning process in
admitting the text messages and convicting the appellant.

A.

TRIAL JUDGE ERRED IN FAILING TO HOLD A
VOIR DIRE

[139]

My colleague proceeds on the basis
that the trial judge erred in failing to hold a voluntariness
voir
dire
concerning the cell phone number. I
would go further and find definitively that the trial judge erred in law in
failing to hold such a
voir dire
.

[140]

As my colleague states, there is a
high onus on trial judges in relation to voluntariness. The general rule is
that the trial judge must always hold a
voir dire
to determine the voluntariness of a statement that an
accused person makes out-of-court to a person in authority:
Erven v.
The Queen
, [1979] 1 S.C.R. 926, at p. 943.
This rule applies notwithstanding the absence of a request for a
voir
dire
from defence counsel:
R. v.
Hodgson
, [1998] 2 S.C.R. 449, at para. 44.
Defence counsel may waive the
voir dire
. However, for the waiver to be valid, defence counsel must expressly
state that the defence does not object to the statements admission or state
that voluntariness is not in issue:
Park v. R.
, [1981] 2 S.C.R. 64, at pp. 73-74. As the Supreme
Court stated in
Park
, at p. 74,
[s]ilence or mere lack of objection does not constitute a lawful waiver.

[141]

This was a case where a
voir
dire
was clearly required absent waiver.
After all, the appellant made the statement about the cell phone number to a
conventional person in authority:
Hodgson
, at para. 45.

[142]

In my view, it follows from my
colleagues conclusion that defence counsel never conceded that the appellants
disclosure of the 6847 number to Officer Varey was voluntary that defence
counsel did not validly waive the
voir dire
. I would reject the Crowns submission that the
appellant effectively advised the court by his conduct and words that a
voir
dire
was not wanted or required. This
submission runs contrary to the requirement in
Park
that a valid waiver must be express and that a
failure to object is insufficient.

B.

THE PROVISO CANNOT SAVE THIS ERROR

[143]

Second, I disagree with my
colleague that it is appropriate to apply the overwhelming evidence branch of
the proviso.

[144]

The common law confessions rule is
a longstanding and fundamental guarantee of the accuseds rights. The
protection against the introduction of involuntary confessions not only ensures
the reliability of confessions but also protects the accuseds rights and
fairness in the criminal process:
R. v. Oickle
, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 69. The
requirement to hold a
voir dire
is a procedural safeguard that protects the accuseds substantive right to have
inadmissible statements withheld from the trier of facts consideration:
Erven
, at p. 929. Indeed, as the Supreme Court held in
Hodgson
,
at para. 44, the obligation to hold a
voir dire
flows from the highly prejudicial nature of
confession evidence.  In
Erven
,
at p. 937, Dickson J. (as he then was) noted that the requirement to hold a
voir dire protects the accuseds most important right to call witnesses and
present argument on the issue of the admissibility of the statement separately
from the main trial. Accordingly, as the Supreme Court explained in
Park
, at pp. 69-70, the failure to hold a
voir
dire
absent an informed waiver will vitiate
the conviction subject to the application of the proviso.

[145]

It follows that courts should be
very cautious to apply the proviso where the trial judge has failed to hold a
voir
dire
. As Dickson J. explained in
Erven
, at p. 947:

When one considers, however, the function of a
voir dire,
and
the interests at stake in the holding of a
voir dire,
it will be but
rarely that the admission of such statements will have caused no substantial wrong
or miscarriage of justice, such that the appellate court may apply [the
proviso].

[146]

In
Erven
, at p. 947, Dickson J. also held that the court must
consider the importance of the evidence improperly admitted in light of the
whole of the case when determining whether to apply the proviso to a failure
to hold a
voir dire
. As I have
explained, this court can look to both the views of trial counsel and the
reasons of the trial judge to assess the relative importance of the improperly
admitted evidence and the impact its exclusion would have on the strength of
the Crowns case. This court should be cautious in applying the overwhelming
evidence branch of the proviso when evidence that both the trial judge and
trial counsel viewed as important was improperly admitted. This court must
afford any possible measure of doubt concerning the strength of the Crowns
case to the benefit of the accused:
Van
, at para. 36.

[147]

In this case, the appellants
disclosure of his cell phone number to Officer Varey was important evidence.
The trial judge said so repeatedly. In his reasons for judgment, he stated that
the evidence of Officer Varey linking the appellant to a cell phone number was
important evidence. Likewise, in his
Browne v. Dunn
ruling, the trial judge noted that the Crown relied
on the appellants disclosure of his cell phone number to Officer Varey to link
the appellant to the 6847 number. He referred to the disclosure as potentially
important to the Crown because the conversations between the 6847 number and
C.H.s phone formed the basis of the possession for the purpose of trafficking
in cocaine charge. He later stated that the failure of defence counsel to
cross-examine Officer Varey on the disclosure of the 6847 number relate[s] to
matters of substance, indeed, potentially critical points of the Crowns case.

[148]

The parties also saw the
appellants disclosure of the 6847 number as important evidence. In her closing
address, Crown counsel referred to the disclosure of the 6847 number and then
stated that there was no doubt that the texts were exchanged between the
appellant and C.H. Defence counsel likewise saw this evidence as important. In
his closing, defence counsel strenuously argued that the evidence from the
officer that he knew the appellants phone number was inadmissible hearsay. He
relied on the argument that the disclosure of the 6847 number was inadmissible
as a central component of his submission that the Crown had failed to prove
that the texts between C.H.s phone and the 6847 number were exchanged with the
appellant. While defence counsels late-breaking hearsay objection was
improper, his decision to target the disclosure of the 6847 number with that
objection is nonetheless a signal of the importance of this evidence to the
Crowns case in the eyes of the defence.

[149]

Not only was the evidence
important, but the trial judges reasons for judgment clearly link the
disclosure of the 6847 number to the ultimate result. The trial judge explained
that this evidence permitted a linkage to the phone number of dad found on
C.H.s phone. He then relied on this evidence to make that very linkage and
find that the 6847 phone number belonged to the appellant. Accordingly, he
admitted the texts sent from the 6847 number as evidence against the appellant
under the party admissions exception to the hearsay rule. The trial judges
admission of the texts sent from C.H.s phone to the 6847 number flowed from
this finding, as he admitted the texts sent from C.H.s phone either on the
basis of apparent common design relating to the drugs, or simply to provide
context to the [appellants] statements. He later relied on this finding that
the conversations were between the appellant and C.H. to convict the appellant.

[150]

In light of the importance of the
disclosure of the 6847 number and its role in the trial judges reasoning
process, I cannot find that there is no reasonable possibility that the verdict
would have been different absent this error. I agree with my colleague that
there was considerable evidence capable of grounding a finding that the cell
phone belonged to the appellant. Yet it is a difficult task for an appellate
court to evaluate the strength of the Crowns case retroactively:
Van
, at para. 36. The trial judge, not this court, was
best placed to evaluate the importance of the disclosure of the 6847 number and
its effect on the strength of the Crowns case. The trial judge referred to the
disclosure of the cell phone number to Officer Varey as important evidence
that could shore up potentially critical points of the Crowns case and the
disclosure of the number played a central role in the reasoning process that
led him to admit the cell phone records and convict the appellant. In these
circumstances, I cannot be confident that he would have reached the same result
absent this important evidence. The trial judges error deprived the appellant
of an important procedural protection that safeguards a fundamental substantive
right, and he is entitled to the benefit of the doubt in assessing the impact
of this error on the ultimate result.

VI.

CONCERN ABOUT POLICE CONDUCT

[151]

Finally, I cannot help but express
my concern about the police conduct that prompted the appellants confession to
possessing the oxycodone pills and the bag of marijuana. Officer Vareys own
evidence is that this confession was prompted by Officer Vareys statement that
the police would otherwise rip apart the appellants house. After finding the
drugs in the basement and in the farmers field, Officer Varey testified that
he engaged the appellant in conversation about the search. In his own words,
this is what Officer Varey told the appellant:

I said, you know, can you tell us
so we dont rip apart
your house
, if you want to tell us where youre keeping the drugs, then,
you know, that would assist us in not having to, you know, kind of go through
every, every inch of the house. [Emphasis added.]

[152]

Defence counsel conceded that the
confession the appellant made to possessing the oxycodone and marijuana bag was
voluntary and ultimately did not contest the two simple possession convictions
for the oxycodone and marijuana bag. On this record I cannot fault him for
doing so. It is possible he was instructed to do so by his client.

[153]

However, the fact remains that
Officer Vareys conduct was improper. The law has long recognized that the home
attracts special privacy interests. Here, of course, the police had a search
warrant and were entitled to search the property. This did not mean that they
were entitled to rip apart the home. Still less did it mean that they were
entitled to use the threat of ripping apart the home to induce the appellant to
incriminate himself. It is reasonable to assume that the appellant would have
experienced Officer Vareys conduct as particularly coercive precisely because
it occurred on private property: see
R. v. Le
, 2019 SCC 34, at para. 68. I cannot help but think
that such conduct undermines public confidence in the police, which is the
worst enemy of effective policing:
Le
, at para. 162 (citations
omitted). The appellant was entitled to expect that Officer Varey would honour
the great responsibilities to respect the appellants rights that come with
the search and arrest powers that he exercised:
Le
, at para. 165.

VII.

CONCLUSION

[154]

The three errors that I have
identified must be considered collectively. I have analyzed them individually
up to this point in my reasons and am convinced that each of them is
individually sufficient to necessitate a new trial. When considered together
they indicate even more strongly why it would be unfair to deny the appellant a
new trial. In this regard, I would note that, where the appellant has
demonstrated multiple legal errors, it is well-established that the reviewing
court must assess the cumulative effect of these errors in deciding whether to
apply the proviso:
R. v. Jackson
(1991), 68 C.C.C. (3d) 385 (Ont. C.A.), at pp. 411-412, affd [1993] 4 S.C.R.
573;
R. v. Bevan
, [1993] 2
S.C.R. 599, at p. 617.

[155]

Put simply, the errors that I have
identified deprived the appellant of fundamental procedural protections that
every accused person is entitled to. The breach of the rule against reopening
deprived the appellant of his fundamental rights to know the case he had to
meet prior to deciding how to conduct his defence and whether to testify or
call evidence and to not be conscripted into assisting with his own
prosecution. The procedural failure to hold a
voir dire
nullified the appellants right to hold the Crown to
its burden to prove the voluntariness of all statements made to persons in
authority through a separate
voir dire
. Finally, the Crown denied the accused the ability to test the
admissibility of the text messages by failing to advance the best evidence rule
presumption at trial that it now relies on appeal. It is no accident that the
Supreme Court, this court, and other appellate courts have urged caution when
applying the proviso to these errors given the important fairness interests
that these rules aim to protect.

[156]

Moreover, each of the errors that
I have identified went to the heart of the Crowns case. The reopening evidence
went to the central issue of residence, the parties and the trial judge viewed
it as important, and the trial judge relied on it to convict the appellant. The
Crown thus used Officer Vareys evidence from the reopening to plug the
deficiencies in its case on residence that defence counsel had identified in
closing submissions. The appellants disclosure of the 6847 number to Officer
Varey that the trial judge admitted without a
voir dire
is similarly important. The trial judge saw this as
important evidence and he relied on it both to admit the cell phone records and
to convict the appellant. Likewise, the best evidence rule presumption the
Crown now raises on appeal retroactively justifies the disclosure of the
important cell phone records that played a key role in the trial judges
reasoning process to convict the appellant.

[157]

In the final analysis, it is
unfair to deny the appellant a new trial in the face of the three significant
errors that I have identified. The appellant has the right to know the case he
had to meet, to enjoy the full protection of the common law confessions rule,
and to have an opportunity to fully test the admissibility of the critical
evidence put against him. The trial judges errors and the Crowns failure to
raise s. 31.3(a) at trial deprived him of these rights. The deprivation was all
the more serious because the evidence that was admitted as a result of these
errors buttressed multiple critical points of the Crowns case and led directly
to his conviction. In these circumstances, I cannot accept that any result but
a conviction would be impossible if these errors had not been committed. For
the reasons set out above, I would allow the appeal and order a new trial, and
I respectfully dissent.

Released: M.T. September 3, 2019

M. Tulloch J.A.

[1]

Names have been initialized to protect the identity of young
persons.

[2]
The appellants trial counsel conceded these statements were voluntary.
Although in oral argument on appeal, appellants counsel questioned the
propriety of this concession, the issue was not raised as a ground of appeal.

[3]
Charges for possession of cocaine and possession of marijuana were stayed
pursuant to
R. v. Kienapple
, [1975] 1 S.C.R. 729.

[4]
When officer Varey testified, he confirmed he had created the extraction report
using the data and program officer Ford provided to him.

[5]

The Samsung cell phone and two iPhones.

[6]
In post-hearing correspondence, appellants counsel acknowledged that, standing
alone, this error would have little significance if the contents of the cell
phone were admitted because the contents give rise to an available inference
that the Samsung cell phone belonged to C.H. However, counsel submitted that
the error would take on potentially greater significance if officer Vareys
evidence concerning the appellants phone number is excluded. Although I will
proceed on the basis that officer Vareys evidence should be excluded,
nonetheless, I am satisfied that the admissible evidence overwhelmingly
supports the convictions.

[7]

R. v. Sabir
, 2018 ONCA 912, 143 O.R.
(3d) 465, at para.
24 (citing
R. v. Hodgson
, [1998] 2 S.C.R. 449,
at para. 41 and
R. v. Sweezey
(1974), 20 C.C.C. (2d) 400 (Ont. C.A.), at
p. 417.

[8]

Even if some of this evidence was not admissible for the truth
of its content, the absence of evidence in the record of the presence of
another individual using a name that could be associated with the Samsung cell
phone e-mail address provided some support for the inference that C.H. owned or
had control of that phone.

[9]

Officer Varey testified that a dog, a pig, and jars filled
with marijuana were found at the residence.