Any views expressed in this article are solely those of the author and do not necessarily reflect the views of the Ministry of the Attorney General.
Sixteen-year-old Tyrone Bracken was murdered on November 17, 2010 in a residential complex in Toronto. He was shot at point-blank range. The trial judge found the killing was nothing short of an “execution.”
SB(1), MW and TF (all young persons) were found guilty of first degree murder. Some of the most powerful evidence against them consisted of text messages uncovered by the police. Through these messages, which detailed conversations between the accused parties both before and after the shooting, the trial judge found he was able to determine they were all active participants in the plan to murder their former friend.
While the use of text messages as evidence in youth court proceedings is no longer novel, particular aspects of how the messages were used in this case makes this case interesting. In particular, the trial was able to conclude the young persons were guilty based on not only what was in the text message conversations, but was absent from them.
In that regard, the case is helpful reminder of both the value of digital evidence and how to interpret it, but also how the law of post-offence conduct continues to evolve alongside the technologies that seem to dominate the lives of young people.
Much of what transpired on the afternoon of November 7, 2010 was not in dispute. Tyrone Bracken was shot to death in the stairwell of an apartment complex. The trial judge had ample evidence to conclude the appellants were present at the time of the shooting. S.B1 was found to be the shooter; M.W. and T.F. were found to have been parties to the murder. (S.B.2, the fourth young person on trial, was acquitted and played no part in the appeal.)
The Crown’s case was almost entirely circumstantial. The young persons did not testify nor make any statements to the police. No witnesses came forward to testify they saw the shooting.
But, as the Court of Appeal described, the appellants left an “electronic trial” behind them, “captured and preserved by their cell phones.” Text messages and calls took place before and after the killing. The text messages were mostly in slang, but a police witness was qualified as an expert in “urban slang” and gave opinion evidence about their meaning.
The text messages revealed a plan to lure and contain Tyrone Bracken in a stairwell. After he was shot, video evidence demonstrated the young persons fleeing the apartment complex where it occurred. Text messages were sent between T.F. and M.W. later that day discussing how dumb it was that S.B.2 was present, as he was now a witness. S.B.1 texted MW to not tell anyone what had just happened.
Over the next few days various other text messages were sent back and forth. In none of these messages did any of the parties express any surprise, shock, or disgust that Tyrone Bracken had been killed.
It is important to note at this juncture that S.B.1 did not appeal his conviction. M.W. and T.F. did.
The Dog That Didn’t Bark
That some of the messages demonstrated the appellants were involved in a plan to do something was important. But the trial judge found that what the text messages did not contain was crucial.
M.W. and T.F. were present when S.B.1 shot Tyrone Bracken. This factual point was clearly available for the trial judge and was not disputed on appeal. Whether or not they knew what was going to transpire that fateful day, was the key factual dispute at trial.
The trial judge found that nowhere in the text communications between M.W. and T.F. after the shooting was there any indication that they were shocked, surprised, or horrified at what had happened to their former friend. The Court of Appeal found that the trial was entitled to use the appellants’ failure to express “surprise and horror” or “disbelief, shock or outrage” after the murder to infer their participation in the plan to kill Tyrone Bracken: see R v S.B.1 at para 45.
Citing a long line of authority, the Court of Appeal noted that post-offence conduct is “circumstantial evidence, used to infer the existence of a fact in issue from the accused’s post-offence conduct”: R v S.B.1 at para 66. It is admissible “where, as a matter of logic, common sense, and human experience, it has a tendency to help the trier of fact resolve a live factual issue and there is no exclusionary rule barring its reception.”: R v S.B.1 at para 68.
The Court of Appeal agreed that logic and common sense suggested it was open to the trial judge to conclude there would be at least “some expression, not only of shock and surprise, but of consternation that… S.B. had killed their good friend”: R v S.B.1. at para 108. The absence of any text messages in the six days after the shooting was circumstantial evidence that the appellants were not surprised by the shooting and were, in fact, part of the plan to murder Tyrone Bracken.
This was a very factually complex case and the text messages in question formed only a part of the evidence. Counsel should review the decision in its entirety for an accurate picture of why the young persons were found guilty.
Yet the role that electronic communications play in contemporary criminal investigations and prosecutions continues to grow. This case is a telling example of how this evidence can be used in fascinating ways. Here, a text message conversation was deemed to be highly probative based on both what it contained, and what it did not contain.
One can easily imagine the use of other forms of electronic evidence being similarly treated. For example, if a witness or accused person was known to frequently post status updates on Facebook, could the absence of a post in the right circumstances be deemed relevant evidence? Or the failure to tweet?
As young people seem to adapt to new technologies faster than most adults, it should be expected some of the most challenging decisions on the uses of this evidence in the future will unfold in youth court.
Any article or other information or content expressed or made available in this Section is that of the respective author and not of the OBA.