Case information

Criminal law - Evidence - Admissibility - Verdict - Curative proviso - Whether the trial judge’s erroneous admission of the text message extraction report pursuant to s. 31.3(b) of the Canada Evidence Act requires a new trial - Whether the curative proviso can be applied in view of the trial judge’s erroneous ruling permitting the Crown to split its case - Whether the curative proviso can be applied to the trial judge’s error in admitting a police statement of the appellant without determining that it was voluntary - Canada Evidence Act, R.S.C. 1985, c. C-5, s. 31.3(a), (b) - Criminal Code, R.S.C. 1985, c. C-46, s. 686(1)(b)(iii).

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(PUBLICATION BAN)

Following the execution of a search warrant by police at a rural residence, the appellant was charged and subsequently convicted of possession of cocaine for the purpose of trafficking, possession of oxycodone, production of marijuana, and possession of marijuana for the purpose of trafficking. A majority of the Court of Appeal dismissed the appellant’s appeal from conviction. In its view, no substantial wrong or miscarriage of justice arose from the trial judge’s error of of admitting evidence of data extracted from a cell phone under the “best evidence rule” admissibility requirement at s. 31.3(b) of the Canada Evidence Act, R.S.C. 1985, c. C-5, because the requirement at s. 31.3(a) was satisfied. In regards to the trial judge’s other two alleged errors of allowing the Crown to reopen its case by recalling the officer-in-charge and subsequently admitting and relying on the officer’s opinion evidence, it was held that even assuming those errors were made, the other evidence adduced at trial overwhelmingly supported the convictions. The dissenting judge at the Court of Appeal would have allowed the appeal and ordered a new trial. In his view, the errors relating to the reopening of the Crown’s case, the best evidence rule, and the trial judge’s failure to hold a voir dire on the admissibility of the appellant’s statement to the officer would have affected the verdict. The curative proviso in s. 686(1)(b)(iii) of the Criminal Code, R.S.C. 1985, c. C-46, could not save those errors.