



WARNING

The President of the panel hearing this
    appeal directs that the following should be attached to the file:

An order restricting publication in this
    proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or (4) or 486.6(1) or (2)
    of the
Criminal Code
shall continue.  These sections of
the Criminal
    Code
provide:

486.4(1) Subject to subsection (2), the
    presiding judge or justice may make an order directing that any information
    that could identify the victim or a witness shall not be published in any
    document or broadcast or transmitted in any way, in proceedings in respect of

(a)     any of the following offences;

(i)      an offence under section 151,
    152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2,
    173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281,
    286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence under this Act, as
    it read at any time before the day on which this subparagraph comes into force,
    if the conduct alleged involves a violation of the complainants sexual
    integrity and that conduct would be an offence referred to in subparagraph (i)
    if it occurred on or after that day; or

(iii)     REPEALED: S.C. 2014, c. 25,
    s. 22(2), effective December 6, 2014 (Act, s. 49).

(b)     two or more
    offences being dealt with in the same proceeding, at least one of which is an
    offence referred to in paragraph (a).

(2) In proceedings in respect of the
    offences referred to in paragraph (1)(a) or (b), the presiding judge or justice
    shall

(a)     at the first reasonable
    opportunity, inform any witness under the age of eighteen years and the victim
    of the right to make an application for the order; and

(b)     on application made by the
    victim, the prosecutor or any such witness, make the order.

(2.1) Subject to subsection (2.2), in
    proceedings in respect of an offence other than an offence referred to in
    subsection (1), if the victim is under the age of 18 years, the presiding judge
    or justice may make an order directing that any information that could identify
    the victim shall not be published in any document or broadcast or transmitted
    in any way.

(2.2) In proceedings in respect of an
    offence other than an offence referred to in subsection (1), if the victim is
    under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the
    victim of their right to make an application for the order; and

(b) on application of the victim or the
    prosecutor, make the order.

(3) In proceedings in respect of an
    offence under section 163.1, a judge or justice shall make an order directing
    that any information that could identify a witness who is under the age of
    eighteen years, or any person who is the subject of a representation, written
    material or a recording that constitutes child pornography within the meaning
    of that section, shall not be published in any document or broadcast or
    transmitted in any way.

(4) An order made under this section does
    not apply in respect of the disclosure of information in the course of the
    administration of justice when it is not the purpose of the disclosure to make
    the information known in the community.
2005, c.
    32, s. 15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014,
    c. 25, ss. 22,48; 2015, c. 13, s. 18..

486.6(1) Every person who fails to comply
    with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is
    guilty of an offence punishable on summary conviction.

(2) For greater certainty, an order
    referred to in subsection (1) applies to prohibit, in relation to proceedings
    taken against any person who fails to comply with the order, the publication in
    any document or the broadcasting or transmission in any way of information that
    could identify a victim, witness or justice system participant whose identity
    is protected by the order. 2005, c. 32, s. 15.




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. C.B., 2019 ONCA 380

DATE: 20190509

DOCKET: C62631 & C63191

Watt, Huscroft and Fairburn JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

C.B. and A.C.

Appellants

Michael Lacy and James Harbic, for the appellant C.B.

Matthew Gourlay, for the appellant A.C.

Jessica Smith Joy, for the respondent Crown

Heard: August 22, 2018

On appeal from the convictions entered by Justice D. K.
    Kirkland of the Ontario Court of Justice on September 4, 2015, and from the
    sentence imposed on C.B. on September 1, 2016 by Justice Catherine A. Kehoe of
    the Ontario Court of Justice.

Watt J.A.:

[1]

D.P. and G.D. were friends. They were 16, attended high school and lived
    at home with their parents with whom each was in conflict. About truancy. And
    about drinking and drug use.

[2]

C.B. was 20. She also lived at home with her parents. She had a
    boyfriend, A.C. He was 31. Drugs and alcohol were readily available when C.B.
    and A.C. were together.

[3]

D.P. and G.D. spent a lot of time at C.B.s house. School time. Weekend
    time. Drinking and smoking. Alcohol and marijuana.

[4]

One evening in May a few years ago, D.P. went to C.B.s house. A.C. was
    there. D.P. smoked some marijuana and drank some alcohol. D.P. claimed that
    something else happened during this visit, something that took place without
    her consent: a sexual assault on her by both C.B. and A.C.

[5]

A few days later, D.P. returned to C.B.s home. This time, she brought
    her friend, G.D., with her. A.C. was there. The same thing happened again.
    Marijuana. Alcohol. And a sexual assault. This time the victim was not D.P.,
    but her friend, G.D.

[6]

C.B. and A.C. were jointly charged with several offences in relation to
    both D.P. and G.D. Assault. Sexual assault. Unlawful confinement.

[7]

After a joint trial before a judge of the Ontario Court of Justice, C.B.
    and A.C. (the appellants) were convicted on all counts. Each appeals
    conviction. C.B. also appeals sentence.

[8]

The reasons that follow explain why I have decided that errors in the
    course of the trial require that the convictions be set aside and a new trial
    ordered. In these circumstances, I do not reach the sentence appeal by C.B.

The Background Facts

[9]

The grounds of appeal advanced do not require a detailed recital of the
    circumstances of the offences of which the appellants were convicted. A brief
    outline is sufficient.

The Principals and Their Relationship

[10]

D.P.
    and G.D. were friends. Each was 16 and at odds with her parents about truancy,
    drinking and drug use. Each appears to have chafed at parental discipline.

[11]

C.B.
    was 20 years old and lived with her parents. She occupied the basement of her
    parents home. Her boyfriend, A.C., was 31 years old and often at C.B.s home.

[12]

D.P.
    and G.D. were recurrent visitors to C.B.s home, especially during the month
    preceding the offences charged. While there, D.P. and G.D. smoked marijuana and
    drank alcohol supplied by the appellants.

The
D.P. Incident


[13]

On
    the Saturday of a Victoria Day weekend a few years ago, D.P. went to a local
    fireworks show with several friends. After the show, D.P. went back to a friends
    house with several others. There, by her own admission, she had a lot to drink.

[14]

Around
    midnight, D.P. went to the appellant C.B.s home where she drank more alcohol
    and smoked some marijuana. She was intoxicated. She could not speak or stand
    properly. The appellants prevented her from going to bed.

[15]

D.P.
    recalled that at some point she was lying face down on the couch. Her tights
    had been pulled down. Her buttocks were exposed. The appellant C.B. took out a
    long ruler, started hitting D.P. across her buttocks with the ruler and her
    hand, and told her that she was a bad girl who deserved these spankings, as
    the appellant C.B. termed them. The appellant A.C. watched, then held down D.P.s
    arms as she tried to move away. The appellant C.B. occasionally groped D.P. as
    the spankings continued.

[16]

D.P.
    also recalled lying on the floor with her ankles and hands bound together with
    purple latex tape. She was blindfolded and gagged. The striking continued not
    only across her buttocks, but also on her thighs, breasts and vagina. Both
    appellants participated, but the appellant C.B. more so than the appellant A.C.

[17]

As
    the assaults continued, the appellant C.B. produced a dildo and nipple clamps.
    The appellant C.B. poured lubricant on D.P.s buttocks and vagina and began to
    hit D.P. with the dildo in those areas. Then, the appellants applied the nipple
    clamps to D.P.s breasts, but removed them when D.P. complained of pain. Then,
    after pouring more lubricant on her, the appellants penetrated D.P.s anus,
    then her vagina with the dildo, while they were laughing, kissing and touching
    each other as they did so. The appellant A.C. also penetrated D.P. digitally.
    To get them to stop, D.P. faked an orgasm. The appellants complimented D.P. on
    being a perfect sex slave.

[18]

D.P.
    repeatedly told the appellants to stop what they were doing to her. Their
    conduct took place over somewhere between three to four hours. Following the
    assaults, D.P. slept upstairs at the appellant C.B.s home.

The G.D. Incident

[19]

The
    next Wednesday, D.P. and G.D. met at school. They went with others over to a friends
    house. G.D. was drinking alcohol. Then, they went with a friend to the
    appellant C.B.s house for tacos. Marijuana and alcohol were made available. D.P.
    and G.D. took advantage of them.

[20]

As time
    passed, what had happened on the previous Saturday began to unfold again. But
    this time with G.D. The appellant C.B. grabbed G.D.s legs. The appellant A.C.
    retrieved the purple tape. They held G.D.s arms and legs despite her protests.
    They told her to just go with it. They said that she would be let go after 50
    spankings. The appellant C.B. claimed that the spankings were a punishment for G.D.s
    late school attendance. Afraid that the appellants might use whips on her, G.D.
    agreed to the spankings.

[21]

G.D.
    recalled that the appellants let go of her arms and flipped her over. As the
    appellant A.C. held G.D.s arms, the appellant C.B. hit her buttocks 50 times
    with her hands and a wooden stick. The entire incident lasted about five
    minutes.

[22]

After
    the spankings had concluded, D.P. and G.D. went into the bathroom together.
    There, D.P. apologized for not intervening. She also told G.D. about what had
    happened to her on the previous Saturday. They agreed to leave, but remained at
    G.D.s residence as the alcohol took over. G.D. continued to drink. She
    blacked out. Her next memory was waking up the following morning in her own
    bed.

The Rescue of G.D.

[23]

G.D.s
    parents learned from D.P.s parents that G.D. was at the appellant C.B.s
    house. Since their daughter had not returned home, G.D.s parents drove over to
    the appellant C.B.s home to retrieve G.D. After repeated knocks, the appellant
    A.C. answered the door. He said that G.D. had passed out downstairs. G.D.s
    father went downstairs, a place that smelled of marijuana. He slapped G.D. to
    awaken her. Then, with some help, he carried her upstairs. As he did so, G.D.s
    skirt flipped up revealing that her buttocks were red.

[24]

G.D.s
    mother confirmed her husbands account of finding G.D. unresponsive in the
    basement of the appellant C.B.s home and of their attempt to rouse her. She
    and her husband questioned the appellant A.C. about whether G.D. had been
    drinking there. The appellant A.C. said that neither he nor the appellant C.B.
    supplied drugs or alcohol to the neighbourhood kids who hung out there. When
    awakened the following morning, G.D. was very distraught" and tearful.

The Initial Disclosure

[25]

The
    morning after the incident with G.D., D.P.s mother yelled at D.P. for having
    left G.D. alone at the appellant C.B.s home. Later that morning, D.P. and G.D.
    met. They discussed what had happened. When D.P.s mother heard G.D. crying in
    the background as she spoke to her daughter on the telephone, D.P. just told
    her [mother] everything. The parents of both daughters took D.P. and G.D. for
    sexual assault examinations.

The Forensic Evidence

[26]

Samples
    taken from both complainants internal and external genitalia disclosed neither
    male DNA nor foreign DNA profiles. A minor amount of DNA detected on G.D.s
    right buttock was insufficient for testing.

[27]

A
    toxicologist found ethanol, Clonazepam and amphetamine, but no THC in samples
    taken from G.D. A sample from D.P. was unsuitable for testing because of the
    lapse of time between the alleged offence and the taking of the sample. When G.D.s
    sample was analyzed to determine blood alcohol concentration, the sample
    contained a concentration of 90 milligrams of alcohol in 100 millilitres of
    blood.

The Positions of the Parties at Trial

[28]

Neither
    appellant testified.

[29]

The
    appellant C.B. sought an acquittal on all counts in the information. She
    contended that the Crown had failed to establish her guilt of any offence
    beyond a reasonable doubt. D.P. and G.D. were incredible; their evidence,
    unbelievable. The testimony of each was replete with inconsistencies.

[30]

The
    appellant C.B. argued that D.P.s text messages, sent contemporaneously with
    the alleged incident, belied her account of unwanted sexual activity and
    controverted her claim about the degree of her intoxication. Her credibility
    was further compromised, as was the reliability of her evidence, when she
    returned the next day to smoke a joint at the appellant C.B.s house, then
    brought her friend, G.D., along a couple of days later.

[31]

The
    appellant C.B. acknowledged that G.D. was a more credible witness than D.P. but
    her testimony was equally unreliable as an account of what had taken place.
    This was so because the group photos taken of the complainants on the basement
    couch were indicative of the parties horsing around rather than engaging, as G.D.
    alleged in her evidence, in non-consensual conduct. Neither complainant was so
    intoxicated as to be incapable of consenting to what occurred. What is more,
    the complainants colluded on their accounts before being interviewed by police
    and providing the statements adduced as part of their evidence in-chief at
    trial.

[32]

The
    appellant A.C. adopted the submissions of the appellant C.B. about the
    credibility of each complainant and the reliability of each of their accounts.
    He also invoked the text messages as evidence that tolled heavily against the
    credibility of D.P. and emphasized the collusive nature of the allegations that
    emerged from the complainants meeting shortly after the alleged offences
    against G.D.

[33]

The
    Crown advanced the complainants as candid, credible witnesses who provided a
    reliable rendition of relevant events corroborated by other evidence adduced at
    trial. The text messages, far from putting the lie to the complainants
    accounts, were barely worth the paper they [were] printed on. They had not
    been properly authenticated by direct or expert evidence, and thus were
    valueless as evidence.

[34]

The Crown
    also disputed the defence submission that the accounts of the complainants were
    the product of collusion. The evidence at trial simply could not support such
    an inference. There was no cooked-up story.

the grounds of appeal

[35]

On
    the appeal from conviction, the appellants advance two grounds of appeal and
    seek to introduce fresh evidence about the authenticity of text messages that trial
    counsel sought to use to challenge the credibility of D.P. and the reliability
    of her account.

[36]

As I
    would paraphrase their common grounds of appeal against conviction, the
    appellants say that the trial judge erred by:

i.

finding the text messages counsel put to D.P. in cross-examination had
    not been properly authenticated; and

ii.

misapprehending the evidence about photos taken (and text messages sent)
    shortly after the alleged assault on G.D.

[37]

Counsel
    tenders for reception as fresh evidence the report of Marty Musters, a
    certified forensic examiner, concerning his examination of a cellphone produced
    by the appellant C.B.s mother and his opinion about the origins and
    authenticity of text messages and photographs extracted from that phone. Counsel
    also tenders an affidavit prepared by C.B.s trial counsel detailing the
    circumstances giving rise to the manner in which she produced the photographs
    and text messages at trial and reasons for producing them the way she had.

[38]

The
    appellant C.B. also appeals her sentence. She says that the trial judge
    overemphasized the objectives of denunciation and deterrence, failed to
    recognize the individualized nature of the sentencing process by neglecting to
    sufficiently distinguish her sentence from that imposed on the appellant A.C.,
    and imposed a sentence that was grossly disproportionate to her moral
    culpability.

the ap
peal from conviction

Ground #1: The Authentication Issue

[39]

This
    ground of appeal arises out of a finding made by the trial judge that certain
    text messages and photographs put to the complainants in cross-examination had
    not been properly authenticated, and thus were of no probative value.

[40]

A brief
    canvass of what occurred at trial will provide a suitable frame of reference
    for the discussion that follows.

The Essential Background

[41]

At trial,
    Crown counsel did
not
introduce evidence of any electronic
    communications between the parties, in particular, between D.P. and the
    appellant C.B., contemporaneous with the events alleged to constitute the
    offences charged. Nor did the Crown tender any photographs of any activities
    that preceded, accompanied or followed the relevant events.

The Text Messages

[42]

At
    trial, counsel for the appellant C.B. (not Mr. Lacy) cross-examined D.P. on
    text messages she allegedly exchanged with C.B. contemporaneous with the
    offences alleged to have been committed upon her.

[43]

The
    trial Crown (not Ms. Smith Joy) asked whether the cellphone used to record or
    send these texts was available for examination. Defence counsel demurred but
    said she would tender the evidence of the person who extracted the messages,
    as well as some photographs, from the cellphone as part of the defence case.

[44]

During
    cross-examination, D.P. acknowledged that the phone number from which various
    texts were sent and at which other texts were received was her cellphone
    number. She also explained that the subject-matter of one of the texts related
    to her then-boyfriend. She did not deny the authenticity of these texts
    associated with her phone. She explained that after the alleged assault, she
    was too scared to tell anyone about what had happened.

[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
    step-father 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]hats 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.

The Photographs

[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 investigators
    report filed as an exhibit at trial. The photograph shown to the witness was
    not filed as a numbered exhibit.

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 cellphone 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 the
    photograph.

[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 didnt recognise it, and then she added: I dont 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.

Im coming to the conclusion that theres really no probative
    value to that evidence. Theres 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 dont know who any one of them is,
    so I cant possibly identify who was being depicted in the photos. The photos
    are blurry, as well, but that doesnt 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 didnt have an opportunity to say thats me or
    thats 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.
    Theres no indication of where the photos were taken, either.

The Arguments on Appeal

[55]

Setting
    to one side the issue of misapprehension of evidence which is the subject of a
    separate ground of appeal, the appellants say that the trial judge erred in
    failing to find that the text messages had been properly authenticated.
    Accepting the urgings of the trial Crown, the trial judge erroneously concluded
    that the text messages could only be authenticated by direct forensic analysis.

[56]

The appellants
    acknowledge that the trial judge did
not
use the terms authenticate
    or authentication in his reasons. But his finding of no probative value,
    when his reasons are reviewed as a whole, amounts to a finding that the
    messages were not properly authenticated. This, the appellants say, amounts to
    legal error.

[57]

Authentication
    of electronic documents, such as printouts of things like emails and texts, are
    governed by s. 31.1 of the
Canada Evidence Act
, R.S.C. 1985, c. C-85 (
CEA
)
. This provision simply codifies the
    common laws standard for authentication of documents. The threshold imposed,
    the appellants submit, is a modest one  the introduction of
some evidence
that the document or thing is what it purports to be. This burden may be
    discharged by direct or circumstantial evidence. Neither the common law nor s.
    31.1 imposes any limitations on the manner of proof.

[58]

In
    this case, the appellants continue, there was ample evidence, both direct and
    circumstantial, to authenticate the text messages and make them available for
    use at trial. D.P. acknowledged that the number to or from which the texts
    appeared to have been sent was her phone number. She explained the content of
    one of the texts. The private investigator who testified as a defence witness
    linked the receiving phone to the appellant C.B. and the content of the
    messages themselves attested to their authenticity.

[59]

In
    addition, the appellants say, the possibility that the integrity of the cellphone
    having been compromised by a phantom App was sheer speculation. There was no
    air of reality to this prospect, hence no basis upon which to deny
    authentication.

[60]

The
    respondent concedes that the threshold to establish authenticity is low,
    satisfied by some evidence capable of supporting a finding that a document is
    that which, it purports to be. In the end, whether a document is what it
    purports to be is a question of fact for the trier of fact to decide on all the
    evidence adduced at trial, not by the trial judge as a preliminary issue of
    admissibility.

[61]

In
    this case, the respondent contends, as trial counsel argued, the trial judge
    received the evidence of text messages and arguments advanced about whether
    those messages were what they purported to be. It then fell to the trial judge
    to decide the weight to attribute to this evidence. The judge decided that
    there was not a sufficient evidentiary basis to conclude that the evidence was
    what it purported to be: a text message exchange between D.P. and the appellant
    C.B.

[62]

The
    appellants complaint, as the respondent sees it, is about how the trial judge
    weighed the evidence. This is a factual assessment entitled to deference in
    this court.

The Governing Principles

[63]

To
    determine this ground of appeal requires consideration of what is involved in
    the process of authentication; how it may be established, especially with
    respect to the subject-matter in issue here; and the roles of the trier of law and
    the trier of fact in the authentication process.

[64]

The
    requirement of authentication applies to various kinds of real evidence.
    Authentication involves a showing by the proponent of the evidence that the
    thing or item proffered really is what its proponent claims it to be:  Kenneth
    S. Broun, ed.,
McCormick on Evidence
, 7th ed., vol. 2 (Thomson
    Reuters, 2013), at § 212, pp. 4-5.

[65]

Authentication
    is the process of convincing a court that a thing matches the claim made about
    it. In other words, it is what its proponent claims it to be. Authentication is
    intertwined with relevance: in the absence of authentication, the thing lacks
    relevance unless it is tendered as bogus. Thus, authentication becomes
    necessary where the item is tendered as real or documentary evidence.

[66]

At
    common law, authentication requires the introduction of
some
evidence
    that the item is what it purports to be:
R. v. Donald
(1958), 121 C.C.C.
    304 (N.B. C.A., at p. 306;
R. v. Staniforth
(1979), 11 C.R. (3d) 84 (Ont.
    C.A.), at p. 89;
R. v. Hirsch
, 2017 SKCA 14, 353 C.C.C. (3d) 230, at
    para. 18. The requirement is not onerous and may be established by either or both
    direct and circumstantial evidence.

[67]

For
    electronic documents, s. 31.1 of the
CEA
assigns a party who seeks to
    admit an electronic document as evidence the burden of proving its authenticity.
    To meet this burden, the party must adduce evidence
capable
of
    supporting a finding that the electronic document is what it purports to be.
    Section 31.8 provides an expansive definition of electronic document, a term
    which encompasses devices by or in which data is recorded or stored. Under s.
    31.1, as at common law, the threshold to be met is low. When that threshold is
    satisfied, the electronic document is admissible, and thus available for use by
    the trier of fact.

[68]

To
    satisfy this modest threshold for authentication, whether at common law or under
    s. 31.1 of the
CEA
, the proponent may adduce and rely upon direct and
    circumstantial evidence. Section 31.1 does
not
limit how or by what
    means the threshold may be met. Its only requirement is that the evidence be
capable
of supporting a finding that the electronic document is that which it is
    purported to be. That circumstantial evidence may be relied upon is well
    established:
Hirsch
, at para. 18;
R. v. Colosie
, 2016 ONSC 1708
, at para. 25;
R. v.
    Bulldog
, 2015 ABCA 251, 326 C.C.C (3d) 385, at para. 35; see also
R.
    v. Evans
, [1993] 3 S.C.R. 653, at p. 663. This accords with general
    principles about proof of facts in criminal proceedings, whether the facts
    sought to be established are preliminary facts on an admissibility inquiry or
    ultimate facts necessary to prove guilt.

[69]

At
    common law, correspondence could be authenticated by the reply letter
    doctrine: to authenticate correspondence as having been sent by one individual
    to another, evidence is adduced to show it is a reply to a letter sent to that
    person. As a matter of logic, the same should hold true for text messages and
    emails. Evidence that A sent a text or email to B whom A believed was linked to
    a specific address, and evidence of a response purportedly from B affords some
    evidence of authenticity: David Paciocco, 
Proof
    and Progress: Coping with the Law of Evidence in a Technological Age

    (2013) 11 C.J.L.T. 181, at pp. 197-8 (
Paciocco
).

[70]

In a
    similar way, text messages may be linked to particular phones by examining the
    recorded number of the sender and receiving evidence linking that number to a
    specific individual, as for example, by admission:
Paciocco
, at p.
    198.

[71]

But
    what of the prospect of tampering? Does it have to be negated before digital
    evidence can be properly authenticated?

[72]

As a
    matter of principle, it seems reasonable to infer that the sender has authored
    a message sent from his or her phone number. This inference is available and
    should be drawn in the absence of evidence that gives an air of reality to a
    claim that this may not be so. Rank speculation is not sufficient:
R. v.
    Ambrose
, 2015 ONCJ 813, at para. 52. And even if there were an air of
    reality to such a claim, the low threshold for authentication, whether at common
    law or under s. 31.1 of the
CEA
, would seem to assign such a prospect
    to an assessment of weight.

The Principles Applied

[73]

I
    would give effect to this ground of appeal. In my respectful view, the trial
    judge erred in concluding that the text messages had no probative value because
    they had not been properly authenticated by direct evidence.

[74]

To
    begin, recall how the use of the text messages arose. Counsel for the appellant
    C.B. sought to cross-examine D.P. on her text message exchange with C.B. at
    times reasonably proximate to the alleged offence. The purpose of this
    cross-examination was to challenge the veracity of D.P.s account of relevant
    events as having occurred without her consent.

[75]

In the
    cross-examination of D.P., defence counsel produced photographs of screenshots
    of messages located on the cellphone provided by the appellant C.B.s mother.
    The photographs of the text messages had been taken by a private investigator
    who would later testify as a defence witness and explain what he had done to extract
    these contents from the cellphone. No evidence was called to link the cellphone
    to the appellant C.B., although a review of the contents of the messages would
    support an inference that the phone was hers, an issue not disputed by the
    respondent.

[76]

During
    the course of the cross-examination of D.P. about the text messages, she
    acknowledged that the number from or to which the messages were sent was in
    fact her cellphone number, and that she had her phone with her during the
    relevant time. She also explained the meaning of one of the texts sent from
    that cellphone. The content of the messages is consistent with relevant events involving
    D.P. and the appellant C.B. Even if we accept D.P.s claim that the appellant C.B.
    installed an App on D.P.s cellphone, the App, she said, allowed the appellant
    to trace her movements. Such an assertion falls well short of furnishing an air
    of reality to a claim of tampering and would not affect authentication.

[77]

In
    the result, I am satisfied that these various strands of evidence were capable
    of supporting a finding that the text messages were what they purported to be:
    an exchange of communications between D.P. and the appellant C.B. The trial
    judge erred in holding, as he appears to have done, that the authenticity
    threshold could only be met by direct evidence from the sender or expert
    opinion evidence from a forensic examiner.

[78]

Satisfaction
    of the evidentiary threshold for authentication under s. 31.1 of the
CEA
or at common law renders the evidence admissible; in other words, available to
    the trier of fact for ultimate evaluation. It does not follow from
    admissibility that the trier of fact must find that the evidence is in fact
    what it claims to be. What remains of the dispute after admissibility has been
    established relates to the weight to be assigned to the evidence. And that
    issue is left to the trier of fact to decide.

[79]

At
    first blush, as the respondent contends, the conclusion of the trial judge
    could be seen as a determination of the weight to be assigned to this evidence.
    But even if it were to be characterized in this way, it is equally flawed. This
    is so because the trial judges conclusion that the text messages had no
    probative value was inextricably intertwined with his insistence on direct
    evidence, a particular species of proof, to establish authentication. In the
    absence of any such requirement, his conclusion on the weight to be assigned to
    the text messages cannot stand.

Ground #2: Misapprehension of Evidence

[80]

The
    second ground of appeal alleges that the trial judge misapprehended evidence
    relating to the text messages and photographs upon which the complainants were
    cross-examined.

The Background Facts

[81]

Trial
    counsel for the appellant C.B. cross-examined G.D. on a photograph alleged to
    been taken around 8:30 p.m. in the basement of the appellant C.B.s home.
    According to G.D.s testimony about the assault on her, the time stamp on the
    photo would have been
after
the assault had been committed. As with
    the text messages, the document on which the cross-examination was based was a
    photograph of a photo located on the cellphone provided by the appellant C.B.s
    mother to a private investigator retained by defence counsel.

[82]

In
    cross-examination, G.D. identified the individuals depicted in the photograph
    including herself, D.P., and the appellant C.B. She agreed with the suggestion
    that the photo had been taken with the participants on the couch in the
    basement of the appellant C.B.s home. The copy of the photograph, removed from
    the report of the private investigator, was filed as a lettered exhibit. The
    report, without this photograph, was filed as an exhibit during the defence
    case.

The Positions of Trial Counsel

[83]

At
    trial, defence counsel contended that the photograph of the principals on the
    couch, taken after the alleged assault on G.D., was an item of real evidence that
    tended to impeach the reliability of G.D.s account and support the position
    that the spanking was part of horsing around among friends.

[84]

The
    trial Crown assailed the evidence extracted from the cellphone. Its origins
    and the integrity of its contents had not been established. It only emerged
    about ten days before the introduction of the evidence, and over a year after
    the communications and photographs extracted from it had been recorded. This
    untested material was of no evidentiary value in assessing the credibility of
    the complainants or the reliability of their testimony.

The Reasons of the Trial Judge

[85]

The
    trial judges reasons with respect to the photographs are excerpted above at
    paragraph 54 of these reasons.

The Arguments on Appeal

[86]

In
    this court, the appellants advance two arguments about the evidence of these
    photographs.

[87]

First,
    the trial judge misapprehended the evidence, and as a result, failed to properly
    factor it into his assessment of the testimony of G.D.

[88]

The
    misapprehensions, the appellants continue, were several in number and amount to
    palpable and overriding errors. Contrary to the findings of the trial judge, G.D.
was
shown the photograph. She identified the people depicted in it.
    Although she did not recall the photograph having been taken, she agreed that
    the location depicted appeared to be the area around the basement couch in the
    appellant C.B.s home. The series of photos entered into evidence were time
    stamped between 8:26 and 8:32 p.m. on the day that G.D. said she was assaulted.
    If the time stamps were accurate, the photos were taken after the alleged assault
    occurred.

[89]

The
    appellants argue that this misapprehension of evidence was material in that it
    resulted in the failure of the trial judge to consider the after-incident
    conduct of G.D. as depicted in the photos in assessing her credibility and the
    reliability of her testimony, both of which were issues residing at the heart
    of the case.

[90]

Second,
    the appellants fault the trial judge for failing to apply the principles laid
    down in
R. v. Nikolovski
, [1996] 3 S.C.R. 1197 in his assessment of
    the photographs put to G.D. in cross-examination. These principles permitted
    the trial judge to compare the persons depicted in the photographs with those
    who testified or otherwise appeared at trial to determine their identity. This
    too resulted in a failure on the part of the trial judge to consider evidence
    relevant to the credibility of G.D. and the reliability of her testimony.

[91]

The
    respondent concedes that the trial judges approach to the cellphone photos
    involved a misapprehension of evidence. But not every misapprehension of
    evidence amounts to a fatal flaw in the determination of guilt. The
    misapprehension must be one of substance. And it must form an essential part of
    the trial judges reasoning in reaching a conclusion of guilt.

[92]

In
    this case, the respondent submits, counsel for the appellant C.B. focused her submissions
    on the text messages, referring to the photo only as being at odds with G.D.s
    testimony that after the assault she did not go near C.B. for the rest of the
    evening and her claim of being traumatized by what occurred. Counsel for the
    appellant A.C. did not refer to the photos at all in closing submissions.

[93]

The
    respondent says that a review of the trial record as a whole reveals that the
    photos were not central to an assessment of the credibility of G.D. or the
    reliability of her evidence, and thus were not material to the outcome of the
    case generally or insofar as it related to the offences alleged by G.D. What is
    more, the potential use of the evidence suggested by the appellants engages
    myth-based reasoning, and thus, cannot be invoked as a pathway to proof of
    guilt.

The Governing Principles

[94]

A
    claim of misapprehension of evidence takes in failures to consider evidence
    relevant to a material issue, mistakes as to the substance of evidence, and
    failures to give proper effect to evidence:
R. v. Morrissey
(1995), 97
    C.C.C. (3d) 193 (Ont. C.A.), at p. 218.

[95]

Where
    a misapprehension of evidence is advanced as a ground of appeal, an appellate
    court must consider first whether the verdict from which the appeal is taken is
    unreasonable:
Morrissey
, at p. 219. Provided the verdict is not
    unreasonable, we are required next to determine whether the misapprehension of
    evidence caused a miscarriage of justice within s. 686(1)(a)(iii) of the
Criminal
    Code of Canada
, R.S.C. 1985, c. C-46. An appellant who succeeds on this
    ground will have the underlying conviction quashed and, in most cases, a new
    trial ordered:
Morrissey
, at p. 219.

[96]

The
    expansive scope of s. 686(1)(a)(iii) includes errors involving a
    misapprehension of evidence. Such an error, like other errors that fall within
    the sections compass, is assessed by reference to its impact on the fairness
    of the trial. When an error involving the misapprehension of evidence renders a
    trial unfair, s. 686(1)(a)(iii) demands that the conviction be quashed:
Morrissey
,
    at p. 221.

[97]

Whether
    a misapprehension of evidence rendered a trial unfair and resulted in a
    miscarriage of justice depends upon the nature and extent of the
    misapprehension and its significance to the verdict rendered by the trial
    judge. This is so because we insist that a verdict be based exclusively on the
    evidence adduced at trial:
R. v. Lohrer
, 2004 SCC 80, [2004] 3 S.C.R.
    732, at para. 1;
Morrissey
, at p. 221.

[98]

The
    standard applied to misapprehensions of evidence advanced in support of a claim
    that a miscarriage of justice has occurred is a stringent one. The
    misapprehension of the evidence must go to the
substance
of the
    evidence, not simply to its detail. And the misapprehension must be
material
rather than peripheral to the reasoning of the trial judge. But there is more.
    And that is that the errors must play an essential part, that is to say, a role
    in the reasoning process resulting in a conviction, not just in the narrative
    of the judgment:
Lohrer
, at para. 2. Said in another way, a
    misapprehension of evidence amounts to a miscarriage of justice only if
    striking it from the judgment would leave the trial judges reasoning on
    unsteady ground:
R. v. Sinclair
, 2011 SCC 40, [2011] 3 S.C.R. 3, at para.
    56;
R. v. Bains
, 2012 ONCA 305, 291 O.A.C. 135, at para. 15.

[99]

Something
    should also be said about the principles that govern use by the trier of fact
    of real evidence, in particular, video images, as evidence of a persons
    identity.

[100]

Photographs, video
    recordings and other video images are real evidence, that is to say, evidence
    that conveys a relevant first-hand sense impression to the trier of fact. They
    are also, to a certain extent, testimonial evidence:
Nikolovski
, at para.
    28.

[101]

It is well-settled
    that a trier of fact, in particular, a judge sitting without a jury, may
    identify a person depicted in a photographic image as an individual who appears
    in the courtroom. That person may be an accused:
Nikolovski
, at para.
    30;
R. v. Slater
, 2010 ONCA 376, at para. 3. But there would seem to
    be no reason in principle to limit this authority to identification of an
    accused as the person responsible for the commission of an offence.

[102]

Caution is required
    when a trial judge considers visual images as evidence of identification. The
    clarity and quality of the image may not be good. There may be changes or
    differences in the appearance of the persons involved:
Nikolovski
, at paras.
    30, 32.

The Principles Applied

[103]

I would give effect to
    this ground of appeal.

[104]

The respondent concedes
    that the trial judge misapprehended the evidence about the photograph on which G.D.
    was cross-examined. The photograph was in fact put to G.D. in cross-examination
    and was part of a series of related photos entered into evidence through the
    private investigators report. In the photo put to G.D., she identified the
    persons depicted there. She acknowledged that the photo appeared to have been
    taken in the basement of the appellant C.B.s home.

[105]

Central to the findings
    of guilt in this case were the trial judges conclusions that D.P. and G.D.
    were credible witnesses who gave reliable evidence.

[106]

Counsel for the
    appellant C.B. challenged the veracity of G.D.s account on the basis that the
    photographs taken after the alleged offence belied G.D.s description of those
    events. It was essential that in reaching his conclusion on these issues he
    based his findings on a correct version of the evidence adduced at trial. He
    failed to do so.

[107]

The trial judge also
    appears to have rejected the evidence of the photos on the basis that they were
    not disclosed by the defence until well over a year after the relevant events.
    In the absence of any obligation on the defence to provide disclosure or turn
    the cellphone over to the police for forensic examination, these were not
    factors relevant to the veracity of G.D.s evidence.

Ground #3: The Fresh Evidence

[108]

The appellants seek
    leave to introduce as fresh evidence on the hearing of the appeal, affidavits
    from Marty Musters, a computer forensic examiner, and from C.B.s trial
    counsel. Each relates to the text messages and photos on which the complainants
    were cross-examined at trial and, more particularly, to the authenticity and
    integrity of those electronic documents.

[109]

The respondent cross-examined
    C.B.s trial counsel on her affidavit but did not cross-examine the forensic
    examiner.

The Background Facts

[110]

The trial judge made
    specific findings of fact about the text messages on which D.P. was
    cross-examined and the photo on which G.D. was cross-examined. The relevant
    passages of the trial judges reasons on these issues have already been
    excerpted. No useful purpose would be served by their repetition here. Suffice
    it to say that the trial judge considered both the text messages and photos to
    have no probative value.

The Affidavit of the Forensic Examiner

[111]

Marty Musters, a
    person qualified to conduct forensic analysis of digital and electronic devices,
    examined the cellphone said to have been used by the appellant C.B. in
    communications with the telephone number of D.P. He was asked to extract and
    extracted these communications and any photographs and accompanying metadata
    for the date on which the offences were alleged to have occurred. He provided
    an opinion about whether any of the data or photographs had been altered or
    changed in any way.

[112]

Mr. Musters deposed
    that the calls and messages he extracted from the cellphone are authentic. The
    messages are continuous and joined. No spoofing service was employed.

[113]

Mr. Musters also
    examined 31 photos taken with the camera feature of the cellphone on the date
    of the alleged offence against G.D. The images, with one exception, were
    unaltered and authentic. In his opinion, the altered image was a touched up
    copy of an original photo taken about 10 minutes earlier.

The Evidence of Trial Counsel

[114]

In her affidavit, C.B.s
    trial counsel deposed that when she learned about text messages and photos
    contemporaneous with the alleged offences, she retained a private investigator to
    extract those messages and photos from the cellphone. The photographs of the
    text messages revealed an exchange with the cellphone of D.P. The photos were
    all taken on the date of the alleged offence against G.D.

[115]

Trial counsel called
    the private investigator as a witness at trial and entered his report as an
    exhibit in the proceedings. Counsel considered that this report, coupled with D.P.s
    testimony that she communicated with the appellant C.B. by text message and
    that the phone number displayed on the text messages was her number, was
    sufficient to support a reasonable inference that D.P. wrote the relevant
    messages and that the photos were taken at the dates and times depicted on the
    phone.

[116]

Trial counsel also
    relied on D.P.s evidence that no one else had her phone at the relevant time.
    She did not consider D.P.s evidence that the appellant C.B. had installed an
    App on her phone as credible because it only emerged on the second day of her testimony
    after having at least implicitly acknowledged on the first day that she sent
    one of the messages. Trial counsel did not consider retaining anyone to do a
    more sophisticated extraction and analysis of the contents of the cellphone and
    sought no instructions from the appellant C.B. to do so.

[117]

In cross-examination,
    trial counsel acknowledged that the case against the appellant C.B. turned on
    the credibility of the complainants and the issue of consent. Her trial
    strategy was to challenge the credibility of both complainants and the
    reliability of their accounts of non-consensual conduct. An important part of
    her strategy, which was discussed several times with her client, was to use the
    text messages and photos to challenge the complainants credibility and support
    the defence position.

[118]

Trial counsel agreed
    that when she cross-examined D.P. using the photographs of the text messages,
    no evidence had been adduced to establish that the cellphone was that of the
    appellant C.B., apart from counsels assertion in her questioning to that
    effect. But D.P. did agree that she had her cellphone that night, acknowledged
    the number as it appeared on the photographs of the texts, had texted the
    appellant C.B. that night and sort of adopted one of the messages, the
    meaning of which she explained. No decision had been made at this point in the
    trial about whether the appellant C.B. would testify.

[119]

The effect of the
    private investigators evidence, trial counsel accepted, was that he had picked
    up the phone from the appellant C.B.s mother. No phone number was associated
    with it. Counsel acknowledged that the appellant C.B. could have been a source
    of getting the text messages and photos filed as numbered exhibits. In the end,
    counsel left it to the trial judge to determine the weight to be assigned to
    the text messages and photos in the credibility/reliability analysis.

The Arguments on Appeal

[120]

The appellants say
    that the proposed fresh evidence, in particular, the affidavit of Marty Musters,
    should be admitted in this case. The evidence satisfies the conditions
    precedent to admissibility. The opinion advanced is admissible under the rules
    of evidence, cogent and not excluded for want of due diligence.

[121]

No dispute arises
    about the admissibility of the evidence of Marty Musters were it to be tendered
    at trial. He is a duly-qualified expert entitled to conduct an analysis on the
    contents of the cellphone. His evidence is relevant to a material issue: the
    origins and authenticity of the text messages and photographs used in
    cross-examination.

[122]

The appellants contend
    that the proposed evidence is well capable of belief; is related to a material
    issue at trial, being the credibility of the complainants and the reliability
    of their evidence; and, if given there, might well have affected the trial
    judges conclusion about the veracity of the complainants evidence, and thus
    the verdict at trial.

[123]

As for due diligence,
    the appellants begin with a submission that due diligence is
not
a
    condition precedent to the admissibility of this evidence. That this evidence,
    or evidence to the same effect, was not called at trial was not the product of
    a strategic or tactical decision not to do so. Counsel had a well-grounded
    belief that the text messages and photos had been properly authenticated to
    permit their use in cross-examination of the complainants. The combined effect of
    D.P.s testimony that she believed no one else had possession of her cellphone at
    the relevant time, together with its number and admitted text exchanges with
    the appellant C.B., as well as the continuity of those messages, satisfied the
    low threshold required for authentication. Additionally, the private
    investigator explained the photographs of the texts and the photos taken and
    their origins.

[124]

The decision of trial
    counsel was not a tactical decision, one made to gain some sort of strategic advantage.
    It reflected considered judgment informed by heed of correct principles. The
    alleged failure of due diligence should not be permitted to defeat the
    reception of this cogent evidence directed to a material issue on appeal. The
    interests of justice require its reception.

[125]

The respondent rejects
    the appellants claim that the cogency requirement has been satisfied and that
    the due diligence factor does not warrant exclusion of the proposed evidence.

[126]

The respondent reminds
    us of the three-pronged focus of the cogency requirement. The proposed evidence
    must be relevant to a potentially decisive issue at trial. It must be credible.
    And it must be sufficiently probative that, when taken with the rest of the
    evidence received at trial, it could reasonably be expected to have affected
    the result.

[127]

The due diligence
    factor, the respondent concedes, is not a condition precedent to the admissibility
    of fresh evidence on appeal. It is concerned with the broader integrity of the
    criminal justice system, including the need for finality in the trial process. Due
    diligence requires an analysis of the reasons why evidence tendered for
    reception on appeal was not adduced at trial. It is a factor to be taken into
    account, along with the requirement of cogency, in deciding whether the
    interests of justice warrant admission of the evidence.

[128]

The respondent says
    that we should not receive as fresh evidence the affidavit of C.B.s trial
    counsel. As a general rule, apart from appeals in which ineffective assistance
    is advanced as a ground of appeal, affidavits of trial counsel explaining trial
    strategy are not received as fresh evidence. Moreover, the trial judge
    permitted the cross-examination, admitted the report of the private
    investigator and considered the impact of the cross-examination on the weight he
    assigned to the complainants testimony. This was as counsel agreed at trial.

[129]

As for the forensic
    examiners affidavit and report, the respondent says that it fails to meet the
    cogency requirement and could have been obtained by the exercise of due
    diligence at trial. That it was not adduced there was a tactical decision made
    by competent trial counsel.

[130]

The respondent submits
    that the evidence of the forensic examiner is not relevant to the issue of
    consent or to the credibility of the complainants because its introduction
    would invite the application of myths and stereotypical reasoning. The
    respondent does not dispute that the evidence is credible, but says that it
    could not reasonably be expected to have affected the result of trial if
    admitted with the rest of the evidence given there. And its availability there
    with the exercise of due diligence renders it contrary to the interests of
    justice to receive it here.

The Governing Principles

[131]

The principles
    governing the reception of fresh evidence on appeal are uncontroversial and in
    no need of elaborate recitation or discussion. They are expressed in the
    interests of justice standard in s. 683(1) of the
Criminal Code
and
    described in the decision in
R. v. Palmer
, [1980] 1 S.C.R. 759, at p.
    775.

[132]

The
Palmer
criteria
    involve three requirements:

i.

admissibility;

ii.

cogency; and

iii.

due diligence.

See
Truscott (Re)
, 2007 ONCA 575, 225 C.C.C. (3d)
    321, at para. 92.

[133]

The precondition that the material tendered for admission on
    appeal must be
admissible
under the operative rules of evidence
    permits the reception of fresh evidence for impeachment purposes, as for
    example, to undermine the basis for findings of fact made at trial:
Truscott
,
    at paras. 96, 98.

[134]

The
cogency
requirement involves a qualitative assessment
    of the evidence tendered for reception on appeal. The evidence must be
relevant
in that it bears upon a decisive or potentially decisive issue at trial. It
    must be
credible
in that it is reasonably capable of belief. And it
    must be sufficiently
probative
that, when taken with the other
    evidence adduced at trial, it could reasonably be expected to have affected the
    verdict rendered at trial. Provided the fresh evidence considered in this
    context could reasonably be expected to have affected the result at trial, it
    is sufficiently cogent to justify its admission on appeal, subject to a
    consideration of the failure to lead that evidence at trial:
Truscott
,
    at paras. 99-100.

[135]

The admissibility and cogency requirements are directed to
    the admissibility of the fresh evidence under s. 683(1). Not so the due
    diligence requirement, which is not a precondition to admissibility. Due
    diligence enters the analysis only if the proposed evidence satisfies the first
    two preconditions to admissibility  admissibility under the adjective law and
    cogency. The explanation offered for the failure to adduce the proposed
    evidence at trial, or absence of an explanation, can result in the rejection of
    evidence that would otherwise be admissible on appeal:
Truscott
, at para.
    93. Where the proposed fresh evidence was available but not tendered at trial
    because of tactical reasons thought justifiable by competent counsel, an
    additional degree of cogency is necessary before the proposed evidence may be
    received on appeal:
R. v. McDonald
, 2017 ONCA 568, 351 C.C.C. (3d)
    486, at para. 148;
Truscott
, at para. 102.

The Principles Applied

[136]

As I will explain, I
    would admit the fresh evidence. In my respectful view, it satisfies the
    conditions precedent for reception of fresh evidence and should not be excluded
    for want of due diligence at trial.

[137]

In this case, the
    fresh evidence extends beyond evidence whose purpose is to impeach findings of
    fact made at trial. The expert opinion of Marty Musters is tendered for that
    purpose, but not so the affidavit and cross-examination of C.B.s trial
    counsel. Its target is the issue of due diligence whose failure may result in
    the exclusion of evidence that satisfies the prerequisites for admissibility.

[138]

First, the expert
    opinion of Marty Musters.

[139]

No dispute arises
    about the admissibility of the expert opinion of Marty Musters under the
    operative rules of evidence. He is a qualified forensic examiner whose report
    would be admissible at the conclusion of the two-step analysis put in place by
White
    Burgess Langille Inman v. Abbott and Haliburton Co.
, 2015 SCC 23, [2015] 2
    S.C.R. 182.

[140]

A critical issue at
    trial on which the outcome depended was the credibility of the complainants and
    the reliability of their account of non-consensual conduct on the part of both
    appellants, which the Crown alleged constituted proof of the offences charged.
    This evidence was vigorously challenged by the defence. Among the methods of
    challenge was cross-examination of the complainants on contemporaneous text
    messages (D.P.) and photographs (G.D.), which were said to be at odds with the
    complainants accounts of relevant events. And essential to impeachment on this
    basis was the authenticity of those text messages and photographs employed in the
    impeachment process.

[141]

The expert opinion of
    Marty Musters is
relevant
to the authenticity of the text messages and
    photographs used as impeachment mechanisms. His opinion establishes the nexus
    between the texting partners, D.P. and the appellant C.B., and the
    contemporaneity and source of the photographs. It tends to show that D.P.s
    denial of authorship could be false.

[142]

The respondent takes
    no issue with the substance of the opinion on authenticity provided by Marty
    Musters, whom counsel did not cross-examine. I am satisfied that his opinion is
    reasonably capable of belief.

[143]

The final component of
    the cogency requirement involves an assessment of whether the opinion evidence,
    the expert opinion about authenticity, could reasonably be expected to have affected
    the verdict at trial. In my respectful view, the proposed evidence satisfies
    this aspect of the cogency requirement.

[144]

At trial, the case for
    the Crown depended on the evidence of the complainants. For all practical
    purposes, their testimony was the case for the Crown. To convict, the trial
    judge had to be satisfied beyond a reasonable doubt that the complainants were
    credible, their evidence reliable and of such persuasive force that it excluded
    any reasonable doubt about the appellants guilt.

[145]

In reaching his
    conclusion that the complainants were credible and their testimony reliable to
    such an extent that it excluded reasonable doubt, the trial judge rejected, as
    of no probative value, the text messages and photographs on which the
    complainants were cross-examined. The judges finding of no probative value,
    thus the lack of any impeachment value, was grounded on his conclusion that the
    messages and photographs were not established as authentic or genuine. But
    casting aside this evidence for want of authenticity, the fresh evidence shows,
    was wrong. It should have been factored into the credibility/reliability
    analysis. In the result, I am satisfied that had the expert opinion of Musters
    been before the trial judge, it could reasonably be expected to have affected
    the conclusion reached in that analysis, thus the verdict rendered at trial.

[146]

What remains is an
    assessment of whether the due diligence criterion should mandate exclusion of
    the evidence of Musters, despite its satisfaction of the conditions precedent
    to admissibility.

[147]

On this issue of due
    diligence, the evidence of trial counsel is relevant. Doubtless, trial counsel
could
have called the appellant C.B. or Musters, or some other forensic examiner, to
    authenticate the relevant contents of the appellant C.B.s cellphone. That
    said, the decision of trial counsel was informed by her view that the record
    contained sufficient evidence to authenticate the contents put to the
    complainants. In this respect, trial counsel, as I have already explained, was
    correct. This was a reasonable conclusion in the circumstances, not a failure
    of due diligence that warrants exclusion of the expert opinion of Musters.

Conclusion

[148]

In the result, I am
    satisfied that the combined force of the errors made at trial and the admission
    of the fresh evidence demonstrate a miscarriage of justice within s.
    686(1)(a)(iii) of the
Criminal Code.
I would allow the appeal, set
    aside the convictions and order a new trial on all counts contained in the
    information.

Released: DW May 9, 2019

David Watt J.A.
I agree. Grant Huscroft J.A.
I agree. Fairburn J.A.


