EVIDENCE-SOCIAL MEDIA EVIDENCE-INCOMPLETE SNAPCHAT MESSAGES

R. v. D.C., 2023 NSCA 20, MARCH 30, 2023.

FACTS: The accused was charged with the offence of sexual assault.  In convicting the accused, the trial judge made reference to the accused’s demeanour while the complainant was testifying and to the accused’s reaction, when the complainant purportedly told him that “she would say he raped her if anyone found out about [their] encounter” (see paragraph 13).

The Trial Judge’s Decision:

In convicting the accused, the trial made the following comments in relation to the accused’s demeanour while the complainant (K.R.) was testifying (see paragraph 16):

I wanted to make a comment or two about demeanour. I observed K.R. testifying in the witness box next to me. I noticed that her whole body was visibly shaking during her testimony, and at times, she broke into tears. During her testimony, D.C., the accused did not look at her, but instead stared off into the corner of the courtroom on the opposite side of the room from where she was seated. I noted that initially and made several att. .., several purposeful efforts to watch this as her evidence continued. On each occasion when I checked this, the pattern was exactly the same. It seemed to be a very purposeful act. There can, of course, be many reasons why an accused would not make eye contact with a complainant in a case such as this, but the studious ignoring of the complainant by the accused was something I have never seen before in close to 40 years being in court on a regular basis. It was certainly not a case where the accused wanted to face his accuser.

The trial judge also considered the accused’s response when told by the complainant that “she would say he raped her if anyone found out about the encounter”.  He stated as follows (see paragraphs 60 and 61):

I have some difficulty with his description of what happened at the complainant’s work. As K.R. was getting out of his vehicle, he says she made threats to him to say “rape” in the event that anyone found out that they’d had sex that afternoon. He said he made no real attempt to stop and talk to her – she was, a, she, of course, was a friend of his nor to do so later that evening or indeed the next morning.

He didn’t make any effort to stop her or to talk to her or find out why she would say such a thing.

The Snapchat Messages:

The Crown presented evidence at the trial that the accused and the complainant had exchanged snapchat messages after the incident.  The Crown argued that they were inculpatory. The complainant had taken screen shots of the messages.  They were incomplete.

In his reasons for convicting, the trial judge stated that he accepted the complainant’s evidence that “she did not photograph messages selectively nor purposely omit any messages that were unsupportive of her complaint against D.C.”

The Appeal:

The accused appealed from conviction.  He argued, in part, that the trial judge erred in (at paragraph 28):

-improperly relying on the appellant’s out-of-box demeanour;

-relying on stereotypical reasoning or impermissible generalizations; [and]    

-by treating the Snapchat messages as an admission of guilt by the appellant.

HELD: The appeal was allowed and a new trial ordered.  The Court of Appeal concluded that “the trial judge committed two fundamental and fatal errors in the assessment of the appellant’s credibility” (at paragraph 34).

Out of Box Demeanor:

The Court of Appeal noted that it has cautioned trial judges “about the use of out-of-box demeanour”.  It also pointed out that the trial judge “did not provide the appellant with an opportunity to address the conduct he determined to be the purposeful ‘studious ignoring of the complainant’” (at paragraph 48).

The Court of Appeal held that that “the behaviour demonstrated by an accused outside of the witness box is not usually relevant. That is, quite simply, because such conduct is not evidence” (at paragraph 50).

It indicated that in this case it had “no doubt [that] the trial judge’s observations of the appellant significantly informed his credibility assessment…[T]he appellant’s behaviour in the courtroom made a negative impression on him and it had an impact on the assessment of his credibility” (at paragraph 49).

The Court of Appeal held that the “use of an accused’s courtroom behaviour outside of the witness box, gives rise to serious trial fairness concerns. It is a foundational principle that an accused is entitled to know the case against them, and to be able to respond accordingly. An accused has the ability to respond to evidence introduced during trial by choosing to call evidence, by discussing evidence in their submissions, or both. The same cannot be said of a judge’s observations of behaviour outside of the witness box which are only disclosed at the time of conviction” (at paragraph 51).

The Court of Appeal concluded that “it was improper for the trial judge to utilize his observations of the appellant’s courtroom behaviour as a factor in his assessment of credibility. Basing his credibility assessment, even partially on factors the appellant had no ability to respond to, constituted an error of law.  I would allow the appeal on the basis of this error alone” (at paragraph 54).

Reliance on Stereotypical Reasoning or Impermissible Generalization:

The Court of Appeal indicated that during the trial, “the appellant was questioned in cross-examination as to why he did not attempt to respond at any point to the complainant’s threat of claiming rape either in the parking lot or later. He said he was stunned by the allegation, and didn’t know what to do. However, the trial judge had difficulty with the appellant’s explanations” (at paragraph 60).

The Court of Appeal concluded that “the trial judge utilized an assumption, not grounded in the evidence, about how a person would respond when falsely accused of sexual assault. He held the appellant’s behaviour up against the assumption an innocent accused would confront a complainant in such circumstances, and it clearly informed his credibility assessment.  In doing so, the trial judge erred in law. I would also allow the appeal on this basis” (at paragraph 62).

Incomplete Snapchat Messages:

The Court of Appeal concluded that the trial judge did not err in relying upon the Snapchat messages, though they were incomplete (at paragraphs 85 and 111):

I am satisfied the trial judge made no error when he accepted the Snapchat messages were admissible despite the potential they were incomplete. The trial judge correctly stated the law that “if the meaning of a text message is clear on its own, the message can be admissible, even if it was part of a longer conversation that was not all captured”. In R. v. Schneider, 2022 SCC 34, the Supreme Court addressed the admissibility of an overheard, but incomplete, conversation as an admission of guilt. The majority found that the exclusion of a partial conversation is not automatic, and a trial judge’s analysis of the ultimate use of the content was a contextual one (at para 72). In my view, the same reasoning applies in the instance of incomplete text or Snapchat messages.

The appellant did not object to the admissibility of the Snapchat messages. He viewed the messages as useful for cross-examining the complainant. Once the Snapchat messages were admitted, it was for the Trial Judge to decide what weight should be given to them. There is no requirement in law that only a complete conversation can be accorded weight.