[ 45] When cross-examination resumed the following day, D.P.
explained that the appellant C.B. had her (D.P.’s) cellphone and
had downloaded an application (“app”) to it so that C.B. could
track the whereabouts of D.P.’s phone. D.P. claimed that her stepfather had found the app on her phone. She explained that she
could not recall having sent the several messages. Their contents
did not sound like something she would have said because she
does not “talk like that”. She did not believe that she had sent the
texts associated with her cellphone number.
[ 46] Counsel for the appellant A.C. suggested to D.P. that the
texts showed her joking about sex and dildos around the time she
alleged that she had been sexually assaulted. D.P. explained,
“[t]hat’s what it shows, yeah”. But the term “LMFAO”, which
was included in her text, could mean several things. It could
mean what it says. Or it could mean that somebody is uncomfortable with the situation and is just laughing about it to show them
that. It is undisputed that the term “LMFAO” is a common acronym used in text messaging for “laugh my fucking ass off”.
[ 47] At trial, defence counsel for the appellant C.B. called a private investigator who explained that he had “extracted” the messages and certain photos from a cellphone provided to him by the
appellant C.B.’s mother. He photographed the data he located on
the cellphone and incorporated it into a written report he provided
to counsel. He did not analyze or authenticate the underlying data.
The report was filed as an exhibit at trial.
[ 48] In reply, the Crown tendered the agreed fact that an officer
from the local police service would have been available to do a
“full forensic examination” of the cellphone produced to determine whether any of its contents had been altered. It was also
admitted that it was possible to create “spoof” telephone calls
coming from persons other than those identified as the caller.
[ 49] The Crown did not seek an order to gain access to the cellphone for forensic analysis.
[ 50] G.D. was cross-examined on a photograph of a photo located
on the cellphone provided by the appellant C.B.’s mother. G.D.
identified the persons in the photograph (the two complainants
and two appellants), which she acknowledged appeared to have
been taken in the basement of the appellant C.B.’s home after the
assault upon her (G.D.). G.D. agreed that the group appeared to be
happy and “horsing around”. The copy counsel produced was taken
from the private investigator’s report filed as an exhibit at trial.
The photograph shown to the witness was not filed as a numbered