Recent Case: R v Durocher, 2019 SKCA 97

A recent case in the Saskatchewan Court of Appeal deals with the procedure and standard of proof for the admission of social media writings where the alleged author disputes having written them. 

The accused in R v Durocher was charged with sexual assault and sexual interference with a person under the age of 16.  He was convicted at trial in the Court of Queen’s Bench, and appealed to the Court of Appeal. 

In the Court of Appeal, the accused took the position that copies of certain Facebook messages he was alleged to have written to the victim prior to the alleged assault were, in fact, not his.  He took the position that the trial judge ought to have conducted a voir dire – that is a trial within a trial – to determine whether the Facebook messages should have been admitted as evidence. 

The Court of Appeal found that a voir dire is not necessary in such a case.  Rather, the court is only required to consider whether the evidence shows that the accused wrote the Facebook messages.  Such evidence could include the source of the information, who had access to the relevant email or Facebook address, details of the writings that would have been known to the alleged author, and the nature of the communications between the parties.  In this case, the victim had provided evidence as to why she believed the accused wrote the Facebook messages:  His name was on top of each message, he was a friend of hers on the website, there was no suggestion at trial of hacking or someone else sending the messages under another name.  The court cited authority to the effect that an inference can be drawn about the identity of an author based on such things as a Facebook handle or a phone number in the absence of evidence that would give an error of reality to a hacking claim.