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Evidence - Electronic Documents. R. v. Shaw
In R. v. Shaw (Ont CA, 2023) the Court of Appeal considered the 'authentication' of electronic documents:[251] The threshold for authentication of electronic documents is low. There must be evidence capable of supporting a finding that the electronic document “is that which it purports to be”. The threshold evidential burden may be met by direct or circumstantial evidence: Canada Evidence Act, s. 31.1; R. v. C.B., 2019 ONCA 380, 376 C.C.C. (3d) 393, at paras. 57, 67-68.
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[253] In my view, these aspects of the evidence taken together are sufficient to establish threshold reliability for admissibility – that the Dozey contact retrieved from Mr. Poyser’s phone “is that which it purports to be.” The appellants’ argument about the opportunity for Mr. Poyser to have added the contact after the offence goes to ultimate reliability, which was for the jury to determine. But it does not undermine threshold reliability for purpose of s. 31.1 of the Canada Evidence Act: C.B., at paras. 72. . R. v. N.G.
In R. v. N.G. (Ont CA, 2023) the Court of Appeal considered the evidentiary status of phone 'text messages', which bears of hearsay exceptions for both 'context' and 'admissions':[56] Where an accused person has engaged in a text conversation with another person, the statements by the accused are admissible as an exception to the hearsay rule. The statements by the other party to the conversation are generally admissible only as context − to understand what the accused person was saying − but not for the truth of their contents. But if it is apparent that the accused is adopting the other person’s statements, or the factual premises of them, as true, those statements can also be treated as an admission by the accused and therefore as admissible for their truth: David M. Paciocco, “Proof and Progress: Coping with the Law of Evidence in a Technological Age” (2013) 11 CJLT 181, at p. 213. . R. v. N.G.
In R. v. N.G. (Ont CA, 2023) the Court of Appeal considered CEA s.31.1 ['Authentication of electronic documents'] and s.31.2(2) ['Application of best evidence rule — electronic documents - printouts'] provisions:Discussion
[31] The trial judge did not err in ruling the printout of WhatsApp messages inadmissible.
[32] I do not interpret the trial judge’s ruling to be that the act of the appellant stealing the complainant’s cellphone made evidence from it per se inadmissible. But that conduct was a relevant consideration in assessing whether the printout that the appellant proffered could overcome the two respects in which it was admissibility-challenged.
[33] Admissibility concerns arose because, first, and regardless of its content, the printout purported to represent the contents of an electronic document. The CEA sets out requirements for proof of an electronic document. A party seeking to admit an electronic document must prove its authenticity − that it is what it purports to be: CEA, s. 31.1. And it sets out certain presumptions about what constitutes the best evidence of the electronic document. A printout will be presumed to be the best evidence of the electronic document if it has been “manifestly or consistently acted on, relied on or used as a record of the information recorded or stored in the printout”: CEA, s. 31.2(2).
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[36] On the question of whether what was proffered was the best evidence of an authentic electronic document, the printout did not benefit from the presumption in s. 31.2(2) of the CEA. It was relevant, to whether the printout was in fact the best evidence, that the appellant had stolen the complainant’s cellphone and put himself in a position where only he controlled its contents, especially when considered with the following other factors. The appellant did not offer the cellphone in evidence. Nor did he pursue obtaining the cellphone from the Gatineau police or attempt to verify its concordance with the printout, although given that opportunity. He raised the printout only in his own evidence, not having questioned the complainant about it when she testified[7]. And the contents of the printout could not be verified by reference to his own cellphone, although he was the other party to some of the purported messages, as the WhatsApp application had been deleted from his cellphone on or before December 14.
[37] Similarly, the fact that the appellant was purporting to introduce evidence from a cellphone he had stolen and withheld from the complainant, in circumstances where he was in a position to manipulate its contents, was relevant to whether the evidence should be admitted under s. 276(2) of the Code, particularly because s. 276(3)(b) of the Code expressly permits the court, in determining whether to admit such evidence, to consider “society’s interest in encouraging the reporting of sexual offences”. The trial judge had raised with defence counsel during argument whether people would be deterred from reporting sexual offences if an accused was allowed to benefit from withholding a complainant’s cellphone in a sexual assault and exploitation case. In that context, I interpret the statement in her reasons for conviction that it had struck her as fundamentally unfair that “the accused would be able to rely on material from a phone which he stole from the complainant in order to use it to undermine her credibility at trial…” to relate to that very consideration.
[38] I also reject the argument that the trial judge should have viewed concerns about the completeness of the printout as going only to the weight of the evidence.
[39] It is true that the threshold for admissibility of an electronic record under s. 31.1 of the CEA is low: R. v. C.B., 2019 ONCA 380, 146 O.R. (3d) 1, at para. 67. Where there are “various strands of evidence…capable of supporting a finding that the text messages were what they purported to be” a trial judge errs by insisting on direct evidence from the sender or on expert forensic evidence to establish admissibility: at paras. 74-77. But that was not the situation in this case. Here, the trial judge was concerned with whether the printout the appellant proffered was the complete, that is, the accurate and genuine, version of messages that were actually on the cellphone on the dates they purported to be, in circumstances where the appellant had taken and withheld the cellphone from its owner. As the trial judge noted, the position may have been different if the appellant had returned the cellphone, and the concern might have changed if the messages were downloaded from the phone now apparently in the possession of the Gatineau police, but neither eventuality occurred. This type of authenticity and best evidence concerns were properly considered as pertaining to admissibility.
[40] The trial judge concluded that in any event the probative value of the messages was negligible and was outweighed by the prejudice of admitting them. The appellant’s argument that the trial judge intermixed her ultimate findings into this question is superficially correct but does not reveal a substantive error. The probative value of the messages had to be assessed in light of the live issues in the case. By the time the printout was offered in evidence, during the appellant’s testimony, the issues had crystallized.
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