The positions at trial
[ 51] At trial, the defence contended that the text messages said
to have originated from or been received by C.B.’s cellphone had
been properly authenticated. D.P. admitted that the relevant cell-
phone number was hers. That she did an about-face the next day
in cross-examination was of no moment in light of the modest
threshold for authentication. The testimony of G.D. authenticated
[ 52] The trial Crown characterized the text messages as unauthenticated and worthless as evidence.
The decision of the trial judge
[ 53] In his reasons for judgment delivered after a luncheon recess
immediately following the conclusion of argument, the trial judge
described his recollection of the evidence about the text messages
and his conclusion about their probative value in these terms:
Crown counsel takes the position that this is material that was gathered well
over a year after the alleged events took place, and cannot be seen as having
any probative value for reasons that I just expressed, that is, the lateness, the
inability of any forensic information to be obtained to verify whose phone it
was, whose messages are on there, and I might say, I forgot to mention this
earlier, that one of the statements that [D.P.] made was that [C.B.] had taken
her phone and put an App into it, and she said: She would know where I was
all the time, because [C.B.] put an App into my telephone.
When shown the messages, the text messages, some of which were shown to
her, two pages of messages, she denied making those statements. She said she
didn’t recognise it, and then she added: “I don’t talk that way.” That was a
direct quote from her, and then she went on to say that [C.B.] had put an App
in her phone and knew where she was all the time.
I’m coming to the conclusion that there’s really no probative value to that
evidence. There’s no evidence as to whose phone it was, who put those messages in the phone, or who was depicted in the photographs.
[ 54] The trial judge set out his findings in connection with the
photographs in this passage of his reasons:
With respect to the photos [taken] of the photos, as I said, there were quite a
number there. I have no idea who is in the photos. There was no evidence telling
me this is so-and-so. It could be anybody. Those are pictures, in most cases, of
three people. I don’t know who any one of them is, so I can’t possibly identify
who was being depicted in the photos. The photos are blurry, as well, but that
doesn’t matter. There was no evidence to tell me who was depicted in the photos.
Also, those photos were not shown to either of the two complainants, and
asked if they had, in fact, been photographed, which could have been done,
but they didn’t have an opportunity to say “that’s me” or “that’s not me”.
The photos were taken, according to the booklet that was filed, between 8: 26,
that would be p.m., I understand, and 8: 32 on the 21st of May. There’s no
indication of where the photos were taken, either.