Digital Case Examples

Question 1

If a complainant posts their age online, can the defence cross-examine her on that post if her age is relevant to the alleged offence?

Answer 1

Yes

Question 2

Describe the facts of R. v. R.D.

Answer 2

27 year old struck up conversation with 15 yr old
Later had sex
Only the two of them testified, have conflicting accounts of whether complainant disclosed her age.

Question 3

What were the two main issues at trial in R. v. R.D.?

Answer 3

1. Did R.D. honestly believe the complainant was over 16 and had taken all reasonable steps to ascertain her age?
2. Did the complainant consent to all of the sexual activity

Question 4

In R. v. R.D., what was the ground of appeal related to digital evidence?

Answer 4

Trial judge improperly curtailed defence counsel’s cross of the complainant on whether she had previously lied about her age.

Question 5

What was the lie and truth of the complainant in R. v. R.D. that the appeal judge made their decision based on?

Answer 5

Testified the only time she lied about being older was when she bought cigarettes.
Actually had a MySpace account where she represented herself as a 19 to 20 y/o who completed high school.

Question 6

Are Facebook posts made by the accused admissible at trial?

Answer 6

Yes.

Question 7

Describe the facts of R. v. Rafferty.

Answer 7

Facebook status: everything good is coming my way
Little girl kidnapped that day and killed.

Question 8

What was the significance of the Facebook post in R. v. Rafferty?

Answer 8

Evidence of mens rea

Question 9

What was the defence’s argument against the use of Rafferty’s Facebook post as evidence?

Answer 9

Challenged admissibility: statement without context.

Question 10

What did the trial judge hold about Rafferty’s Facebook post?

Answer 10

Amissible.
Highly probative
Highly relevant to state of mind
No prejudice

Question 11

True or false: Twitter posts are always irrelevant at trial because they are so short.

Answer 11

False

Question 12

Describe the case of R. v. Sonne.

Answer 12

Arrested for G20 protest-related issues
Claimed police did not explain his rights to him
Tweets were found on his account where he shared resources for protestors.
Decided that this showed he understood his right.

Question 13

If a person uses their first and last name online, can that name be used to help identify them as the person sending the messages associated with the named account?

Answer 13

Yes

Question 14

Describe the case of R. v. Craig.

Answer 14

Craig corresponded with a 13 year old on Nexopia.
screen name: AaronCraig
Convicted
Appeal dismissed

Question 15

Why is self-identifying online not considered to infringe upon the right against self incrimination?

Answer 15

It is not a statement.

Question 16

True or false: Crown can only use one type of digital evidence at trial.

Answer 16

False

Question 17

Describe the types of digital evidence used at the trial of R. v. Cafe.

Answer 17

Boasted about killing in text messages to friends
Wrote inculpatory rap lyrics
Posted photos of crime scene online

Question 18

If a complainant engages in trying to find the perp by browsing Facebook, is that “Facebook line-up” evidence admissible?

Answer 18

Yes

Question 19

Describe the case of R. v. T.A.H.

Answer 19

16 y/o m robbed by three other male youths
Victim and witness thought they knew one of the subjects
Using facebook, found pfp
Victim and witness certain pfp was one of the suspects

Question 20

What decision did the court make in terms of the “Facebook line-up” in R. v. T.A.H.?

Answer 20

Accepted it was recognition evidence

Question 21

Can circumstantial evidence be used to prove the authenticity of digital evidence?

Answer 21

Yes

Question 22

Describe the case of R. v. Roulette

Answer 22

Roulette ordered not to contact complainant
Three FB messages sent
Issue: who authored them?
Held: circumstantial evidence sufficient, content “sufficiently unique”

Question 23

Why was the photo of the cop found not admissible in R. v. Andalib-Goortani.

Answer 23

Photo could not be properly authenticated
Crown failed to establish the image was not tampered with or altered

Question 24

What case dealt with authenticating images?

Answer 24

R. v. Creemer and Cormier

Question 25

What are the three requirements for images/photos to be authenticated?

Answer 25

Images are accurate Images are fair and absence of intent to mislead Images verified on oath by a person capable of doing so

Question 26

What did the SCC see in R. v. Jarvis about the videos and REP?

Answer 26

REP is not just about location, but normative values Privacy is context dependent Concealment of the camera also speaks to intent

Question 27

Define SA.

Answer 27

An assault committed in the circumstances of a sexual nature, such that the sexual integrity of the victim is violated.

Question 28

Describe the proof of actus reus in SA from R. v. Ewankchuk

Answer 28

Touching Sexual nature of contact Absence of consent

Question 29

Does defence counsel have any disclosure obligation in the context of sexual offence cases?

Answer 29

Yes

Question 30

Describe reverse disclosure in sexual offence cases.

Answer 30

Defence have an obligation to disclose evidence of prior sexual activity or records of the complainant in the possession of the accused if they intend to adduce it at trial.

Question 31

When is evidence of prior sexual activity admissible?

Answer 31

If the reason for relying on the evidence does not violate the twin myths.

Question 32

What is a criticism of reverse disclosure in sexual offence cases?

Answer 32

Tips off liars

Question 33

What are the twin myths?

Answer 33

Support an inference that, by reason of sexual activity, the complainant is: 1. more likely to have consented to the activity that forms the subject of charge 2. less worthy of belief

Question 34

What case dealt with the twin myths?

Answer 34

R. v. Seaboyer

Question 35

Why are the twin myths not permitted to enter the trial process?

Answer 35

Not relevant Can severely distort the trial process

Question 36

Does defence counsel need the court's permission to rely upon non-sexual text messages between the accused and the victim?

Answer 36

No

Question 37

What was held in R. v. W.M. about non-sexual messages?

Answer 37

Complainant does not have REP in messages Material in the defence possession is not a record and no admissibility application is required

Question 38

What were the factors considered in deciding R. v. W.M.?

Answer 38

Content : not sexual, not engaging twin myths Manner in which the messages were sent and who has control over them Nature of the relationship Policy implications of finding she does have an REP.

Question 39

Describe the case of R. v. Mills.

Answer 39

The SC held that the accused did not have a REP over sexually explicit FB messages he thought he was sending to 14 y/o girl.

Question 40

Does defence counsel need to file an application if they seek to rely upon text messages that are sexual in nature?

Answer 40

Yes