R. v. R.W.Q.

2025 BCSC 2402 R. v. R.W.Q.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. R.W.Q., 2025 BCSC 2402 Date: 20251006 Docket: 86098-2 Registry: New Westminster Rex v. R.W.Q. Restriction on Publication: A publication ban has been mandatorily imposed under s. 486.4 of the Criminal Code restricting the publication, broadcasting or transmission in any way of any information that could identify the complainant. This publication ban applies indefinitely unless otherwise ordered. Corrected Judgment: The text of this judgment was corrected at para. 2 on January 22, 2026. Before: The Honourable Justice D. Layton Oral Ruling on Voir Dire Counsel for the Crown: B.D.M. Israel Counsel for the Accused: D.M. Melville Place and Date of Trial/Hearing: New Westminster, B.C. October 6, 2025 Place and Date of Judgment: New Westminster, B.C. October 6, 2025 [1] THE COURT: This is a pretrial application brought by the Crown to authenticate two items for use as evidence at a jury trial. The Crown filed the application at my direction late last week, after difficulties arose with respect to filing arrangements that had been made at two pretrial conferences. [2] By way of background, R.Q. is charged with one count of attempted sexual interference and one count of attempted sexual assault under ss. 151, 271 and 463(d) of the Criminal Code, R.S.C. c. C-46. As set out in the complainant's statement to Cst. Kang filed by the

Crown on this application, the allegation is that on a date in April 2023, R.Q. attempted to kiss the complainant, his music student, during or prior to a lesson, but she managed to dodge the kiss. [3] At trial, the Crown intends to call evidence through the complainant of two documents reflecting communications between her and R.Q.: first, printed screenshots of text messages that she says they exchanged earlier on the day of the incident; and second, a handwritten letter she says he gave her after the incident. [4] The defence takes the position that the Crown must call the complainant to provide oral evidence to meet the threshold for authenticating these two documents and that, without this oral evidence, the Crown application must fail. The defence does not oppose the Crown application on any other basis. In particular, the defence does not argue that the content in the documents filed by the Crown in support of its application would be insufficient to meet the test for admissibility with respect to authenticity or any other admissibility test, were it to be elicited from the complainant in oral evidence on this application. [5] I will begin these reasons by describing the two documents in issue. I will then address the legal principles governing authentication and the best evidence rule at common law and under the Canada Evidence Act, R.S.C. c. C-5 [CEA]. After that, I

will determine whether the Crown must call oral evidence on this pretrial application. Finally, I will decide whether the documents are admissible at trial. The Two Documents [6] The complainant gave her statement to Cst. Kang on May 25, 2024. In it, she explained that she recalled that the incident was in April 2023, because that was the month she stopped taking lessons from R.Q. But the complainant did not remember the specific date. She also described receiving the texts from R.Q. on the day of the incident, when he picked her up from school to attend her lesson, and she spoke about subsequent emails and texts from him about opportunities to play music. [7] On August 19, 2024, Cst. Kang emailed the complainant to ask whether she had any of the text messages or emails from R.Q. On August 22, the complainant emailed Cst. Kang in reply, stating that she had deleted the bulk of everything when she was really upset, but had taken screenshots of a few things that were relevant, including "the important ones on the day of". She also emailed Cst. Kang a handwritten note that she indicated, "might be relevant". [8] The screenshots provided by the complainant to Cst. Kang are dated April 4, September 22, December 10 and December 12, 2023. The text messages dated April 4, 2023, are stated to come from a person using a shortened form of R.Q.'s first name, in which he inquires about

picking her up from school: Male's Name: Are you out of school yet? I can pick you up and bring you here. It turns out [child's name] has a math session after school at her school. Complainant: Oh, I'm out of school now. Male's Name: Would you like a ride here? Or if you prefer, I can leave the key under the pot outside the door. Either way is fine with me. Complainant: Either way works for me too, but it takes a while to drive to [name of a location]. I can walk. Male's Name: I'm on my way. [Name of complainant's school] right? Complainant: Oh okay. Yes 👍 Male's Name: I'm here. [9] The Crown seeks to rely on this text exchange to corroborate the complainant's evidence in a number of respects, including that on the day of the incident R.Q. arranged to pick her up from school prior to her lesson. [10] At the June 9, 2025 interview, Cst. Kang asked the complainant how she knew the text messages came from R.Q. In response, the complainant stated that: a) she had R.Q.'s phone number saved in her phone, probably because a teacher's number is sometimes required for registrations, competitions, or exams; b) another possibility was that because her phone had previously belonged to one of her parents, his number was in it as one of their saved contacts; and c) she did not, however, believe that R.Q. had ever messaged her previously, because the two of them did not communicate by

texts. [11] Turning to the handwritten note, it states: I don't have romantic feelings for you. It was more of a wake-up call for my relationship with [R.Q.'s wife] than anything else. I actually don't know what my intentions were, but when I realized that I had crossed a line I too was terrified. I never want to cross a line like that again. My relationship with [R.Q.'s wife] and my students is far too important to me. I know that you are safe as far as I am concerned. My biggest regret is that you feel uncomfortable. I am glad to hear that you did a least feel comfortable here with us for a while. [Names of others in R.Q.'s household] enjoy your presence here and you will always be welcome. [Name of another music teacher] is probably one of the best teachers in [name of city], and I think he is far more comfortable with the advanced [name of instrument] repertoire than I am. So, I think it is in your best interest that you study with him more regularly. I hope you will still feel free to audition at other universities as well. [Complainant's first name], you deserve all the best that life has to offer. It has been an honour and privilege teaching you, I have never taught anyone that I enjoyed teaching more. You will always be welcome to play for me, I would really love that. I wish only joy and happiness for you in your life. Always yours, [signed using short form of R.Q.'s

first name] [12] At the June 9, 2025 interview, the complainant told Cst. Kang that this handwritten note was provided to her directly by R.Q. during a lesson. The Crown relies on this note as an implicit admission by R.Q. that he acted inappropriately towards the complainant, which in turn helps to support her testimony that he tried to kiss her. Authentication [13] As a general proposition, a party seeking to introduce real evidence as an exhibit at trial has the burden of establishing that the evidence is what it purports to be. That is, that the evidence is authentic. [14] Watt's Manual of Criminal Evidence sets out the applicable rules for both electronic and non‑electronic documents at §1:30. It states: A document includes any written thing that is capable of being made evidence, irrespective of the material upon which it is written. Statutory provisions have generally expanded "document" to include more modern forms of recording and storing information. Apart from exceptional circumstances, a document introduced at trial must be proven. Its authenticity must be shown by direct or circumstantial evidence or by admission. Where some evidence of authenticity has been adduced, the party tendering the document asks that it be marked as an exhibit. It becomes evidence in the case, its weight a matter for the trier of fact. For electronic documents, s. 31.1 Canada Evidence Act

codifies the common law authentication rule. Where a document is offered in evidence in proof of its contents, the best evidence rule generally requires that the original of the document be filed. However, by exception, a copy may be admitted. [Emphasis in original] [15] As noted in this excerpt, as well as in the leading case of R. v. Ball, 2019 BCCA 32 at para. 70, s. 31.1 of the CEA codifies the common law authentication rule for electronic documents. [16] The parties agree that the text messages in this case fall within the definition of "electronic document" in s. 31.8 of the CEA, and that the authentication threshold in s. 31.1 therefore applies. Just as at common law, authenticating an electronic document for the purposes of admission under s. 31.1 of the CEA requires only that there be some evidence capable of supporting a finding that the document is that which it purports to be. As stated in s. 31.1: Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purported to be. [17] The burden of proof is on the tendering party, but the threshold is low. To repeat, the question is simply whether there is some evidence, direct or circumstantial, to support a finding that the document is what the tendering party claims it to be. If so,

the document is adequately authenticated, although this does not mean that it is genuine. That is a question of weight for the trier of fact, which often turns on questions of credibility: Ball at para. 70. [18] A helpful articulation of what does and does not need to be established to meet the admissibility threshold for authentication is provided by Justice Devlin in R. v. Coban, 2021 BCSC 2428: [11] Authentication for the purposes of admissibility is "nothing more than a threshold test requiring that there be some basis for leaving the evidence to the fact-finder for ultimate evaluation": David M. Paciocco, "Proof and Progress: Coping with the Law of Evidence in a Technological Age" (2013) 11:2 C.J.L.T. 181 [Paciocco, "Proof and Progress"] at 197. Once this modest threshold is met, the electronic document is available for use by the trier of fact: R. v. C.B., 2019 ONCA 380 at para.

67. The "integrity (or reliability) of the electronic document is not open to attack at the authentication stage of the inquiry" as those questions "are to be resolved under s. 31.2 of the [CEA]": R. v. Hirsch, 2017 SKCA 14 [Hirsch] at para. 18. [12] Where there is a dispute about authenticity--such as an argument that the accused is not the author of the Facebook messages--this is better resolved at the end of the case, rather than at the admissibility stage: Paciocco, "Proof and Progress" at 197, R. v Martin, 2021 NLCA 1 at para. 41 [Martin]. For example, in R. v. Hamdan, 2017 BCSC 676 [Hamdan], police officers who viewed Facebook pages and took screenshots testified at trial that the screen captures were of the Facebook pages in question. This was enough to authenticate the documents: The question of authorship--whether the accused was the writer of the posts--was "a matter to be considered at trial" (at para. 62; see also R. v. Sandham, 2009 CanLII 59151, [2009] O.J. No. 4527 at para. 15). [19] Relying on R. v. Elite Farm Services Ltd., 2021 BCSC 1583 at paras. 53-60 and 66-70, the defence argues that s. 31.1 of the CEA does not codify the common law authentication rule, but rather creates an entirely distinct test. On this view, even if authentication is established under s. 31.1, the party seeking to call evidence must still go on to establish authentication at common

law. The defence further argues that at common law authentication must be established to the court's satisfaction on a balance of probabilities, and thus on an evidentiary standard higher than that provided for in relation to s. 31.1. [20] In my view, the defence position is unpersuasive. Ball at para. 70 expressly states that s. 31.1 codifies the common law on authenticity with respect to electronic documents, and sets out a single threshold for that unitary test. In doing so, Ball cites with approval R. v. Hirsch, 2017 SKCA 14 at para. 18, which not only comes to the same conclusion, but relies on the excerpt I have set out above from Watt's Manual of Criminal Evidence. As noted, this textbook endorses the same test for the authentication of both real evidence and electronic documents. [21] I am bound by Ball and therefore I am not prepared or able to accept the defence argument based on Elite Farm Services Ltd. Paragraph 68 of Ball does not hold otherwise, but simply makes the common sense point that other admissibility rules, for instance regarding hearsay or the assessment of prejudice versus probative value, still apply and are not circumvented by s. 31.1 of the CEA. Best Evidence Rule [22] Once a party seeking to admit an electronic document has met its burden by presenting evidence capable of authenticating the document, the court will move on to assess whether the

document meets the best evidence rule: Ball at para. 72; R. v. Hamdan, 2017 BCSC 676 at paras. 43-47. [23] At common law, the best evidence rule requires the tendering party to produce an original document or the next best available document, on the reasoning that alterations are most readily detectable on an original: Ball at para. 72; Hirsch at paras. 22-23. [24] However, the concept of an original, as that term was traditionally used in the best evidence rule, is not well suited to electronic documents. Consequently, the CEA dispenses with the need for an original, and substitutes other means of satisfying the purpose that underpins the best evidence rule, by creating a statutory version. It adopts an inclusive approach pursuant to which an original is any translation of the computer code in observable form: Ball at para. 72; Hirsch at para. 22-23. [25] In line with the rationale driving the common law rule, the statutory best evidence rule thus aims to help ensure that the electronic document accurately reflects the original information inputted into a computing device by its author. The framework in the CEA provides alternate methods of satisfying this goal, some of which rely on statutory presumptions available in the absence of evidence to the contrary. [26] Section 31.2 of the CEA provides for satisfaction of the best evidence rule by proof, direct or circumstantial, of

the integrity of an electronic document system, proof via secure electronic signature, and proof via printout. Section 31.3 creates rebuttable presumptions that may be used to prove system integrity for the purpose of satisfying s. 31.2: Ball at para. 73; Coban at paras. 15-17. [27] The parts of ss. 31.2 and 31.3 that are relevant in this case state: 31.2 (1) The best evidence rule in respect of an electronic document is satisfied (a) on proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stored; ... 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; [28] The ease with which the presumption in s. 31.3(a) can be triggered is described by Justice Devlin in Coban: [18] To trigger the presumption set out in s. 31.3(a), the Crown must only show "evidence capable of supporting a

finding that" the system was operating properly, which imports a prima facie case or "air of reality" standard: Paciocco, "Proof and Progress" at 204. In R. v. S.H., 2019 ONCA 669, aff'd: 2020 SCC 3 [S.H.], a majority of the Ontario Court of Appeal confirmed that the s. 31.3(a) presumption creates a lower threshold than the other subsections, given that it only requires "evidence capable of supporting" the relevant findings, and not that the findings are established or proven (at para. 25). Although the Crown could also have relied on s. 31.3(c) (the business records presumption), I find consideration of this section is not necessary, as I am satisfied that the documents are admissible pursuant to the lower threshold contained in the s. 31.3(a) presumption. [19] The very fact that voluminous messages were successfully sent and received, or that a "facially coherent document was downloaded from a Facebook" page or system, should be enough that a court can "infer that the electronic document system was working at the material time and is unaffected by any problems that site or the internet provider may have experienced": Paciocco, "Proof and Progress" at 205-206. The question of whether a message was really authored by the person identified is a question of relevance that does not impact the operation of this presumption: Paciocco, "Proof and Progress" at 207. [29] The many cases

in which screenshots have been held to meet the requirements of the best evidence rule include: Hamdan at para. 82; Ball at paras. 75-76, referring to two trial decisions with apparent approval; and R. v. Vermeer, 2023 BCCA 206 at para. 29, leave refused 2024 CanLII 530 (SCC), quoting with approval from Hirsch. Whether Oral Evidence is Required on this Voir Dire [30] Before applying the legal principles regarding authenticity and the best evidence rule to the circumstances in this case, I will address the defence argument that the Crown application fails right out of the gate because it is supported only by out-of-court statements made by the complainant to the police. [31] The defence says that oral evidence from a live witness is always required on an admissibility voir dire, asserting that cross-examination of the witness is necessary to ensure the reliability of whatever evidence is being proffered by the Crown. The defence goes so far as to claim that without oral evidence Crown counsel is effectively giving evidence on the voir dire and may therefore become a compellable witness. [32] I am unable to accept the defence argument as a general proposition. Multiple cases, including from the Supreme Court of Canada, confirm that a judge has a broad discretion to manage the trial process to ensure that it is both efficient and fair to the participants. This discretion extends

to deciding the manner in which a pretrial application will be conducted in order to achieve those objectives. In fact, there is a longstanding discretion to require, where practicable, the expeditious presentation of evidence on a pretrial motion. A party is not entitled to whatever style of voir dire they prefer. See R. v. Haevischer, 2023 SCC 11 at paras. 56 and 102; R. v. Bottomley, 2022 BCSC 2047 at para. 13; R. v. Evans, 2019 ONCA 715 at para. 148. [33] Guidance in determining whether oral evidence is required on an admissibility voir dire is provided in R. v. Aragon, 2022 ONCA 244 at paras. 37-40. Aragon notes that it is often not only common but preferable in the interests of efficiency to conduct an admissibility voir dire based on information that would not be admissible at the trial proper. If the underlying facts material to admissibility are not contested, oral evidence will probably not be required. On the other hand, the Crown cannot rely on bald factual assertions amounting to nothing more than a wish list of the testimony it hopes the witnesses would provide. Instead, proper supporting materials for the proposed evidence of the witness should be provided. [34] Although the Crown in this case is relying on disclosure materials in support of its application to authenticate the two documents in question, it is worth adding that the submissions of counsel alone are commonly relied on by courts in a variety of circumstances: R. v. J.L.K., 2023 BCCA 87 at para.

47. To provide but one example, the relevance of proposed evidence is generally determined on the basis of submissions of counsel, no doubt because the threshold for relevance is low and concepts such as ultimate reliability and probative weight have no place in determining relevance: R. v. Schneider, 2022 SCC 34 at para. 39; R. v. Blackman, 2008 SCC 37 at para. 30. [35] In the same vein, in Bottomley at paras. 18-19, Justice Devlin noted that in some instances the credibility or reliability of the witness who will be testifying at trial is best left for determination by the trier of fact after cross-examination. Ultimately, the question becomes whether the issue for determination on the pretrial application requires findings to be made regarding the witness's credibility or reliability. If not, it is much more likely that oral evidence from the witnesses will not be required on the admissibility voir dire. And there is no merit to the suggestion that a pretrial application should be used as a dry run of witness testimony to compensate for the absence of a preliminary inquiry. [36] In Bottomley itself, a voir dire was held to determine the admissibility of ante mortem statements. The defence argued that the recipients of those statements were required to testify on the voir dire. Justice Devlin rejected this argument, and permitted the Crown to rely on materials from the

disclosure, because caselaw held that credibility or reliability concerns regarding the recipient of an ante mortem statement are generally best left to the trier of fact. It followed that where the recipient was available for examination at trial, the threshold reliability of the statement would not generally be affected by the absence of their oral testimony on the voir dire. [37] The same reasoning applies here. [38] The Crown has based its application on filed disclosure materials, including two police statements and an email from the complainant. There is no reason to suppose that the complainant would not give the same evidence in chief were she to testify on the voir dire. The caselaw on authenticating documents establishes that whether her oral evidence directed at meeting the necessary threshold is credible or reliable is a question for the jury. The proffered evidentiary basis for the Crown's application is therefore sufficient to make the necessary admissibility determinations, one way or another, without hearing oral evidence from the complainant and permitting her to be cross-examined by the defence. [39] To put it another way, even were the defence to cross-examine the complainant on the voir dire and raise possible concerns about her credibility or reliability on matters relating to authenticity, it would not fall within my purview to conclude that the

authenticity threshold had not been met based on those concerns. [40] I would add that, in this case, the defence has not pointed to any potential frailties with respect to the information the complainant has provided in her statements to police when it comes to the authenticity of the two documents in question. Were there a viable basis for saying that the low threshold for establishing authenticity at common law and under the CEA might not be met, my conclusion as to whether oral evidence is required might have been different, but I have not been presented with such a scenario. [41] Although not necessary to my conclusion on this point, another factor supporting not requiring the Crown to call the complainant to give oral evidence is her vulnerability as a complainant in a case involving alleged sexual conduct directed at a minor: Bottomley at para. 21. [42] Having determined that the Crown can proceed with its application without the need to call oral evidence from the complainant, I will next determine whether the admissibility of the text messages and handwritten note has been established. Admissibility Determination [43] The complainant has told police that the text messages are screenshots that she herself took, that some of the texts were sent on the day of the incident, and that she exchanged these texts with R.Q. She has also explained to the police how R.Q.'s phone

number would have ended up saved on her phone. I further note that the texts ascribe to the sender a shortened version of R.Q.'s first name, circumstantially suggesting that the sender's number was saved in the complainant's phone using that name. [44] This evidence is capable of supporting a finding that the screenshots are what they purport to be. That is, text messages exchanged between the complainant and R.Q. at around the time of the alleged offence. I therefore conclude that the authenticity test under both s. 31.1 of the CEA and the common law is met. [45] Turning to the best evidence rule as set out in s. 31.2 of the CEA, the complainant told police that she took the screenshot of the text messages she exchanged with R.Q., including on the day the incident occurred. In my view, her statement at the very least amounts to an implicit assertion, or circumstantial evidence, that the screenshot accurately reflects the text messages exchanged, and that her phone was operating properly at the times in question. The best evidence rule is therefore satisfied. [46] As for the handwritten note, the complainant has told the police that this document was given to her personally by R.Q. at one of her lessons. The authenticity threshold is therefore met. [47] The best evidence rule will be met by the Crown eliciting the original of the handwritten note through the complainant at

trial, or if that is not available the copy emailed by her to Cst. Kang. [48] Because the defence twice failed to file materials in accordance with schedules agreed upon at pretrial conferences, out of an abundance of caution the Crown's submissions on this application addressed not only authenticity and the best evidence rule, but also the issues of relevance, the admissions exception to the hearsay rule, and the court's discretion to exclude Crown evidence the probative value of which is exceeded by its prejudicial impact. At least two of these issues had been mentioned as a possible basis for exclusion by the defence at a pretrial conference. [49] For the reasons provided by the Crown in its written and oral submissions, and based on reasoning analogous to what I have set out above regarding the authenticity and best evidence rules, in my view these additional admissibility issues can all be dealt with based on the paper record provided by the Crown. Oral evidence from the complainant is not required. [50] The defence has not provided any arguments suggesting that the complainant's evidence regarding the text messages and handwritten note is not relevant, is inadmissible as hearsay, or should be excluded based on excessive prejudicial impact. In any event, there is no basis upon which I could find that the evidence is inadmissible for any of these reasons. [51] First, the

two documents are relevant for the reasons I have already provided in describing them. Relevance simply refers to the capacity for evidence to make a disputed fact more or less likely. No particular level of probative value need be established: Schneider at para. 39. [52] Second, the two documents constitute alleged admissions by a party, R.Q., which are admissible under a traditional exception to the hearsay rule, without the need for the Crown to establish any level of necessity or reliability: Schneider at para. 55. [53] Third, the text messages are bereft of any potentially prejudicial impact within the meaning of the caselaw, which is concerned not with the risk of conviction but rather the possibility that evidence will be misused by the jury or otherwise create unfairness: R. v. Handy, 2002 SCC 56 at para. 139; Schneider at para. 60. [54] The same goes for the handwritten note, which the Crown intends to use to suggest that R.Q. apologized for the charged transgression. This proposed use is for a proper purpose and there is no reason to believe the note will be misused by the jury. Conclusion [55] The Crown application to admit the text messages and handwritten note into evidence at trial is allowed. "D. Layton J."