Vauclair, Cournoyer, Lavallée

Application for leave to appeal from sentence. Granted. Appeal from convictions and sentence. Dismissed.

The appellant contests the Court of Québec judgment convicting him of incest, sexual assault, child luring, and drug trafficking. He questions the admissibility of the screenshots of electronic conversations with the victim, his daughter, recorded on the TextPlus application, and argues that the convictions are unreasonable. He submits that his daughter outright fabricated the allegations of sexual assault out of vengeance, because he had told her that he would report her behaviour to the Director of Youth Protection. The appellant also contests the total sentence he received of 14 years’ imprisonment, the maximum sentence for the offence of incest.

When deciding whether an electronic document is admissible, the trial judge need not determine whether the statement was really made or its probative value. Moreover, determining the authenticity of the document and its weight, including the issues of reliability and the risk the document was manipulated or altered, is done during the final assessment of the evidence, not when determining its admissibility.

The decision to admit into evidence the screenshots of the electronic messages sent through the TextPlus application contains no reviewable error. Sufficient evidence was adduced by the prosecution at the admissibility stage. The Court considers that the overall evidence amply met the requirements regarding authentication and the best evidence rule concerning electronic documents (ss. 31.1 and 31.2 of the Canada Evidence Act (R.S.C. 1985, c. C-5)). These requirements could be met through direct or circumstantial evidence.

In this case, it was not necessary to present evidence through an expert opinion. In addition to the testimony of the victim, who explained how she used the TextPlus application, there was also the technical and admissible testimony of the investigator, who explained the steps he took and how the application worked. The judge was fully aware of the risk that the appellant’s identity might have been usurped to fabricate the text message without his knowledge. However, he did not have to decide this issue when ruling on admissibility. The judge then performed a thorough analysis of the question of who had written the electronic messages and the probative value of the evidence.

As for the convictions, the appellant has demonstrated no palpable and overriding error in the judge’s assessment of the victim’s testimony. The judge accepted her testimony, while recognizing its failings and weak points. The convictions are not unreasonable, illogical, or irrational, and they  are amply based on the evidence.

Finally, the judge committed no error justifying this Court’s intervention when he imposed the maximum sentence for the offence of incest. The Court’s case law, even before R. v. Friesen (S.C. Can., 2019-10-16), 2020 SCC 9, SOQUIJ AZ-51680674, 2020EXP-902, [2020] 1 S.C.R. 424, did not prohibit such a sentence. The circumstances of the offence, the many aggravating factors, the lack of mitigating factors, and the fact that the objectives of denunciation and deterrence should be given particular attention, justified this harsh sentence.

Text of the decision: http://citoyens.soquij.qc.ca