Keeping Up Is Hard to Do:
A Trial Judge’s Reading Blog


R. v. Hogan, 2022 ABCA 5, January 11, 2022, at paragraphs 7 to 10:

The appellant argues that the trial judge improperly relied on location evidence from the complainant’s smartphone, without forensic confirmation of this information. Mr. Guse described how his smartphone had been damaged during the incidents. Constable Ferri found a smartphone that matched the description at a location connected to the appellant. Mr. Guse directed Constable Ferri to information in the smartphone which showed its location during the events, and that corroborated Mr. Guse’s evidence about his kidnapping. Based on what he observed in the smartphone, Constable Ferri testified that the smartphone appeared to have moved from Edmonton to Thorsby and then back to Edmonton.

Both parties analysed this issue as being a form of hearsay, although it is more correctly seen as a form of circumstantial evidence. Constable Ferri was not repeating information conveyed to him by a third party, which would be captured by the hearsay exclusion, but rather was reading data automatically collected and displayed by the smartphone. Machines do not talk or testify: Kon Construction Ltd. v Terranova Developments Ltd., 2015 ABCA 249 at para. 14, 20 Alta LR (6th) 85, 602 AR 327. The issue here is not “hearsay” but the admissibility of data that is automatically collected, stored, and reported by an electronic instrument.

A trial judge is entitled to rely on data that is automatically collected and displayed by instruments in common use, at least in the absence of any formal objection: Kon at paras. 15-18, 22; R. v Murray, 2013 ONCA 173 at para. 7, 42 MVR (6th) 175. For example, if a witness testifies as to the time of an event because he looked at his watch, the Crown does not have to prove the operation of watches. It would be similar if the witness checked the time on his smartphone. Images from surveillance systems are routinely admitted in evidence without proving the background technology: R. v Brar, 2020 ABCA 398 at para. 59, 14 Alta LR (7th) 24, leave to appeal refused May 6, 2021, SCC #39519. Whether the trial judge will hold a voir dire and the weight to be given to such evidence is within the mandate of the trial judge.  

Smart telephones are now sufficiently ubiquitous that, in the absence of a specific objection, trial judges are entitled to take notice of their capabilities and the reliability of the information they generate. The inherent reliability of such automatic devices rests in their scientific design and testing, and it is confirmed by the fact that they are routinely used millions of times every day: Kon at para. 17. Any inherent flaw in their operation would be exposed. When Constable Ferri testified that the smartphone showed that it had been at locations consistent with the evidence of the complainant, that was admissible evidence that the trial judge was entitled to rely on.