Canada Case Law

R. v. Hernandez-Viera

Court

Court of Appeal for Ontario

The trial judge did not err: he reasonably treated security camera timestamps as approximate measures supported by consistent timestamps across two cameras and by conceded accurate GPS data; taken with the surrounding circumstantial evidence (rental initials, DNA on water bottle, vehicle route and timing), the only reasonable inference was that the appellant was the shooter and the conviction was not unreasonable.

Source excerpt

• Identity
• Circumstantial evidence
• Electronic evidence
• Timestamp accuracy
• Photographic identification
• Gps evidence

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R. v. Vermeer

Court

British Columbia Court of Appeal

Appeal from child pornography convictions dismissed. The Court upheld extensive computer-forensics evidence, rejected best-evidence and hearsay arguments, and found no material misapprehension of evidence.

• Child pornography
• Electronic evidence
• Best evidence rule (cea s.31)
• Hearsay and principled exception
• Circumstantial evidence
• Computer forensics

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Levington v. Benson

Court

Supreme Court of British Columbia

The court found Mr. Levington’s $80,597.62 payment was an investment for a 20% interest in the home, not a gift, and ordered a buy-out or sale under the Partition of Property Act.

• Gift vs loan vs investment
• Resulting/constructive trust
• Partition of property
• Declaration of ownership
• Credibility assessment
• Handwriting comparison

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R. v. Alkahlil

Court

Supreme Court of British Columbia

The court refused to let defence counsel ask witnesses to power up seized BlackBerrys in open court, citing risks of data alteration and an ongoing investigation.

• Electronic evidence
• Powering up seized devices
• Chain of custody
• Section 605 criminal code procedure
• Publication ban s.648(1)
• Electronic-evidence

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R. v. Aslami

Court

Court of Appeal for Ontario

The convictions were unsafe because the trial judge failed to rigorously assess and authenticate crucial electronic message evidence without expert proof, improperly relied on unreliable identification from a blurry short surveillance video while ignoring contradictory clothing and timing evidence, and failed to consider other plausible innocent explanations under the Villaroman circumstantial evidence framework; accordingly the convictions were set aside and a new trial ordered.

Source excerpt

• Circumstantial evidence
• Identification evidence
• Electronic evidence
• Appellate review
• Reasonable doubt
• Expert evidence

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R. v. Martin

Court

Newfoundland and Labrador Court of Appeal

The trial judge erred by excluding the screenshots; the Crown adduced sufficient direct and circumstantial evidence to authenticate the Facebook screenshots under s.31.1 and to invoke the s.31.3(a) presumption of system integrity; authentication and presumed integrity meet the low threshold for admissibility and authorship and weight are matters for the trial judge at the substantive trial; appeal allowed and matter remitted for further proceedings.

Source excerpt

• Electronic evidence
• Authentication
• Canada evidence act s.31.1-31.3
• Screenshots and social media
• System integrity
• Admissibility vs authorship

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Lickerish, Ltd. v. airG Inc.

Court

Federal Court

The Federal Court dismissed Lickerish Ltd.’s copyright claim against airG Inc. because Lickerish failed to prove standing, with key evidence ruled inadmissible.

• Standing to sue
• Exclusive licence
• Admissibility of evidence
• Hearsay
• Electronic evidence
• Jurisdictional connection

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R. v. Frater

Court

Court of Appeal for Ontario

The appeal is allowed in part: the trial judge erred under the Kienapple rule by convicting on both count 2 and count 3 based on the same evidence, so the conviction on count 3 is set aside; all other convictions were supported by admissible text evidence, credible eyewitness and circumstantial evidence and no W.(D.) or burden‑of‑proof error occurred; victim surcharges were imposed contrary to the Charter and are set aside; sentence otherwise remains undisturbed.

Source excerpt

• Breaking and entering
• Weapons
• Mischief
• Criminal harassment
• Threats
• Probation breach

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Long Lake Hydro Limited v. Western Versatile Construction Corp.

Court

Supreme Court of British Columbia

The court ordered the electronic evidence practice direction to apply prospectively in a complex construction dispute, but refused to require re-coding or re-issuing existing document lists.

• Electronic evidence
• Practice direction on electronic evidence
• Document production protocol
• Proportionality
• E-discovery metadata and coding
• Electronic-evidence

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R. v. S.H.

Court

Court of Appeal for Ontario

Majority (Simmons J.A.): Trial judge erred in relying on s.31.3(b) but admissibility of the cellphone extraction met the best evidence rule under s.31.3(a); even if the reopening and opinion evidence errors occurred, they did not produce a substantial wrong or miscarriage of justice because the remaining admissible evidence overwhelmingly supported conviction. Accordingly, conviction appeal dismissed; sentence appeal allowed in part to set aside victim fine surcharge. Dissent (Tulloch J.A.): errors (reopening Crown case, misapplication of s.31.3(b), failure to hold voir dire) were prejudicial…

Source excerpt

• Electronic evidence
• Best evidence rule
• Browne v dunn rule (cross-examination)
• Reopening crown case/case splitting
• Voluntariness and voir dire
• Party admissions

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