Instagram messages in sex trial unrecoverable
Jonathan Dort, 41, of Geary, is standing trial on allegation he sexually assaulted a teenage girl in his vehicle two years ago
Warning: This article includes a graphic description of sexual assault.
Instagram messages that the defence sought to introduce as possible evidence in a sexual-assault trial can’t be recovered, a court heard Monday.
Fredericton provincial court Judge Natalie LeBlanc started hearing testimony April 11 in the trial of Jonathan Dort, 41, of Maxwell Road in Geary, who faces charges of sexual assault and sexual interference.
The complainant - whose identity is protected by a court-ordered publication ban - testified last month she was 15 years old when Dort, who was giving her a drive home, pulled over, tried to kiss her, touched her sexually and then got on top of her, penetrating her vaginally.
The girl - who’s now 17 years old - said she was scared and thought he might kill her when he was finished with her. Instead, court heard, he dropped her off at her parents’ home.
The charges allege the incident occurred Jan. 7, 2021, in the Fredericton Junction area.
When cross-examined by defence lawyer Alexander Carleton, she denied instigating the encounter, adding she didn’t try to kiss Dort or offer oral sex.
However, the girl confirmed Dort had found her Instagram profile before the incident and had been messaging her.
Prodded by Carleton, the witness said they hadn’t planned the sexual encounter through Instagram, but she confirmed there had been mentions of sex. She thought Dort was joking, she said.
As a result of that testimony last month, Carleton sought an adjournment of the trial so the defence could check to see if the Instagram messages between Dort and the complainant could be recovered and examined.
Prosecutor Gwynne Hearn said the messages weren’t included in the disclosure because the Crown didn’t have them, and Carleton said the defence didn’t have them either.
LeBlanc granted the adjournment, and the case was back before her Monday for a status hearing. Dort wasn’t present for the brief proceeding.
“The disclosure we would’ve wanted, it no longer exists,” Carleton told the court.
He noted it appears they were deleted from various devices or that the devices were no longer available, as they’d been disposed of.
Last month, Carleton also said the defence might make an application to adduce evidence about the complainant’s sexual history, depending on what was contained in the Instagram messages.
Section 276 of the Criminal Code of Canada notes such evidence is inadmissible at trial save for in limited circumstances, and before it can be brought up at trial, a hearing has to be held to determine if it would meet the narrow exceptions.
The defence lawyer said he was still consulting with Dort about whether he wants to go forward with the Section 276 hearing in light of the inability to retrieve the afore-mentioned messages.
LeBlanc noted that if such a hearing is going to be held, the defence needs to file the formal application with the court, and the complainant is entitled to retain her own counsel.
Section 276 hearings are normally held in camera, meaning the general public, including journalists, are excluded from the courtroom.
The judge adjourned the case to June 13 for another status hearing and possibly to schedule a Section 276 hearing.
At the outset of the trial last month, court heard Dort plans to testify in his own defence once the Crown’s evidence is concluded.
Don MacPherson can be contacted at ftonindependent@gmail.com.