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Evidence - Authentication. R. v. S.M.
In R. v. S.M. (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal against a conviction for sexual assault.
Here the court considers 'authentification', here of photographs but usefully commenting on the authentification of electronic documents:Authentication of the Photographs
[27] The appellant submits that the photographs tendered through the complainant were not properly authenticated, and therefore should not have been admitted. He relies on this court’s decision in R. v. Aslami, 2021 ONCA 249, 155 O.R. (3d) 401, specifically at para. 30:[T]rial judges need to be very careful in how they deal with electronic evidence of this type. There are entirely too many ways for an individual, who is of a mind to do so, to make electronic evidence appear to be something other than what it is. Trial judges need to be rigorous in their evaluation of such evidence, when it is presented, both in terms of its reliability and its probative value. [28] I agree with the Crown that Aslami is of limited assistance to the appellant. Aslami was about what weight to give electronic documents, not about – as in this case – their admissibility. The appellant’s objection is that the trial judge did not properly attend to the reliability and probative value of the documents in deciding to admit them. He argues in particular that “[m]ore caution was required when assessing this electronic evidence especially considering the fact that these photos were actually ‘screenshots’ transferred to the complainant on Snapchat from a third party who never testified.”
[29] I am not persuaded by this submission. It is true that a party seeking to file an exhibit must authenticate it. However, as this court discussed in R. v. C.B., 2019 ONCA 380, 146 O.R. (3d) 1, at paras. 66-68, the threshold for doing so is low:At common law, authentication requires the introduction of some evidence that the item is what it purports to be: R. v. Donald, 1958 CanLii 470 (NB CA), [1958] N.B.J. No. 7, 121 C.C.C. 304 (C.A.), at p. 306 C.C.C.; R. v. Staniforth, 1979 CanLII 4477 (ON CA), [1979] O.J. No. 1026, 11 C.R. (3d) 84 (C.A.), at p. 89 C.R.; R. v. Hirsch, [2017] S.J. No. 59, 2017 SKCA 14, 353 C.C.C. (3d) 230, at para. 18. The requirement is not onerous and may be established by either or both direct and circumstantial evidence.
For electronic documents, s. 31.1 of the [Canada Evidence Act] assigns a party who seeks to admit an electronic document as evidence the burden of proving its authenticity. To meet this burden, the party must adduce evidence capable of supporting a finding that the electronic document is what it purports to be. Section 31.8 provides an expansive definition of “electronic document”, a term which encompasses devices by or in which data is recorded or stored. Under s. 31.1, as at common law, the threshold to be met is low. When that threshold is satisfied, the electronic document is admissible, and thus available for use by the trier of fact. [Emphasis added.] . R. v. D.W.
In R. v. D.W. (Ont CA, 2024) the Ontario Court of Appeal considered requirements to authenticate documents, here Childrens' Aid records:[22] The appellant submits that the 2015 CAS Record was not properly admitted and the trial judge erred in relying on it to rebut the allegation of recent fabrication.
[23] We reject this submission.
[24] Authentication of the 2015 CAS Record was not disputed at trial. The CAS produced its records pursuant to a subpoena. They were brought to court by CAS counsel and provided to the complainant’s counsel. Thereafter, they were produced to the appellant with the consent of the Crown and the complainant. There was no issue that the 2015 CAS Record was what it appeared to be on its face – a report prepared by a CAS worker. All parties and the judge operated under the shared understanding that the document was what it purported to be. Indeed, defence counsel cross-examined the complainant based on the information in the 2015 CAS Record. There was evidence that the document was what it purported to be, which is sufficient to meet the modest threshold for authentication: R. v. C.B., 2019 ONCA 38, at para. 68.
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