S.J. v. R., 2024 QCCA 253, FEBRUARY 27, 2024 [translation from CanLII].
FACTS: The accused was convicted of the offences of incest and sexual assault. He was sentenced to a period of fourteen years of imprisonment (the maximum sentence for the offence of incest). He appealed from both conviction and sentence. On the conviction appeal, he argued that the trial judge erred in admitting “screenshots electronic conversations with his daughter that were recorded on the ‘Text Plus’ application” (see paragraph 10).
HELD: Both appeals were dismissed.
The Appeal From Conviction:
The Court of Appeal noted that “the burden of authentication of an electronic document is relatively low, essentially evidence that establishes ‘that the document is indeed what it appears to be’. A party who wishes to satisfy this requirement may do so by direct and circumstantial evidence. Authentication can be proved by the testimony of a witness who recognizes the document, and even if he is not the creator of it… In general, expert evidence is not required” (at paragraphs 84 and 85).
The Court of Appeal also considered the application of the “best evidence rule”. It pointed out that “[s]ubsection 31.2(1)(b) of the Evidence Act does not require proof of original documents, but the demonstration of the reliability of the system archiving of electronic documents. In other words, is there evidence that the electronic document corresponds to the information stored in the computer system” (at paragraph 88).
The Court of Appeal concluded that the evidence was properly admitted. It held that the necessary “authentication requirement” had been met (at paragraph 105).
The Appeal From Sentence:
The Court of Appeal referred to the Supreme Court’s decision in Friesen, and held that it supports the proposition that imposition of the maximum sentence “does not require rare or special circumstances as long as the sentence imposed is proportionate and justified” (at paragraph 223).
The Court of Appeal concluded that though the sentence imposed was “severe”, the “circumstances of the crime” warranted “this severe punishment” (at paragraph 236).
