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Evidence - Electronic Documents. R. v. Lalji
In R. v. Lalji (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, here brought against a conviction for "a single count of conspiring to import cocaine into Australia".
The court considers the authentification of an "electronic document" [CEA s.31.8 - 'Definitions'], here while examining the circumstances surrounding "two audio recordings" recovered from a phone:[28] The expansive definition of “electronic document” in s. 31.8 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (“the CEA”) includes digital audio recordings. Under s. 31.1 of the CEA, the Crown had to establish the authenticity of the audio recordings “by evidence capable of supporting a finding that the electronic document is that which it is purported to be”.
[29] In R. v. C.B., 2019 ONCA 380, 146 O.R. (3d) 1, at para. 67, Watt J.A. noted that the authenticity threshold under s. 31.1 of the CEA is “low”. He explained further, at para. 68:To satisfy this modest threshold for authentication, whether at common law or under s. 31.1 of the CEA, the proponent may adduce and rely upon direct and circumstantial evidence. Section 31.1 does not limit how or by what means the threshold may be met. Its only requirement is that the evidence be capable of supporting a finding that the electronic document “is that which it is purported to be.” That circumstantial evidence may be relied upon is well established …. This accords with general principles about proof of facts in criminal proceedings, whether the facts sought to be established are preliminary facts on an admissibility inquiry or ultimate facts necessary to prove guilt. [Italics in original]. [30] “Rank speculation” that an electronic document may not be genuine “is not sufficient” to defeat an otherwise available inference of authenticity: C.B., at para. 72. Rather, concerns that an electronic document may have been altered or falsified should generally be resolved by the trier of fact: C.B., at para. 72; see also D. Paciocco, “Proof and Progress: Coping with the Law of Evidence in a Technological Age”, (2013) 11 Can. J. L. & Tech. 181, at p. 197.
[31] Mr. Lalji does not dispute that the audio recordings that were adduced at trial were authentic copies of the digital files the RCMP had extracted from Mr. Wang’s phone. His argument is that the Crown had not established that they were an authentic record of the conversations that they purported to capture.
[32] Mr. Lalji makes two main arguments. First, he contends that it was never established that the date and time stamps on the digital files were accurate, and that “[w]ithout situating the recordings in time proximate to the alleged charge, the recording itself loses all probative value”.
[33] I agree that the digital date and time stamps associated with the two digital audio recording files could not be blindly assumed to be accurate: see Paciocco, at pp. 198, 227. However, this did not automatically make the digital recordings themselves inadmissible. Documents, whether physical or electronic, may be received into evidence even when their creation date is entirely unknown. Whether or how much this affects their probative value in a particular case is for the trier of fact to determine.
[34] In addition, inferences about when a document was created can often be drawn based on the document’s contents, either through non-hearsay reasoning, or through hearsay reasoning if the contents of the document are admissible for their truth under a hearsay exception.
[35] In this case, since the trial judge found the conversations on the two audio recordings to be admissible for their truth under the co-conspirators’ exception to the hearsay rule, he was entitled to rely on the substance of these conversations to draw inferences about when they took place, by situating the recordings in the context of the electronic communications retrieved from the couriers’ seized phones.
[36] In my view, it can readily be inferred from the evidence as a whole that the first conversation must have taken place during the meeting on the evening of November 30, 2015 that Mr. Wang and Mr. Pastukhov had arranged in their text message exchanges that day. It can also be inferred that the second conversation was recorded during a further meeting between Mr. Wang, Mr. Pastukhov and other people on or about December 14, 2015, shortly after Mr. Wang was forwarded the email with his and Ms. Wade’s airline tickets.
[37] I accordingly see no error in the trial judge’s conclusion that “as a result of the match between the dates and delays referred to by the speakers and the extraction evidence that these meetings took place very shortly before the December 2015 trip in question in this trial.” He was entitled to find as he did that the recordings therefore had significant probative value.
[38] Mr. Lalji’s second argument is that the Crown failed to establish that the recordings had not been manipulated or altered because the Crown did not adduce any direct evidence about how the recordings were made, who made them, or how they ended up on Mr. Wang’s phone.
[39] I do not agree that direct evidence was essential, since the “modest threshold for authentication” under s. 31.1 of the CEA may be established circumstantially: C.B., at paras. 66, 68. Here, the circumstances in which the recordings were retrieved supported the inference that they were unlikely to have been altered.
[40] Mr. Wang was evidently not expecting to be arrested when he tried to enter Australia, or to have his phone seized and searched. There is no reason to think that he was expecting anyone else to listen to the recordings, and neither he nor anyone else had any discernible motive to alter their contents. Other electronic documents found on Mr. Wang’s phone confirm the accuracy of at least some aspects of the recordings. For instance, contemporaneous text messages exchanged between Mr. Wang and Mr. Pastukhov discussing plans to meet, apparently to discuss the scheme, align with the time at which the first recording was apparently made. On the second recording, Mr. Pastukhov told Mr. Wang that they would set up a WhatsApp group chat “with the four of us. You, me, Porscha and Ali”. A WhatsApp group with these four participants was then created that same night, by an account associated with Mr. Pastukhov’s phone number.
[41] Moreover, Mr. Pastukhov identified his own and Mr. Wang’s voices on the recordings. It was not plausible to imagine that in 2015 someone would have had the technical tools or ability to create false recordings that accurately mimicked the sounds of Mr. Pastukhov and Mr. Wang’s voices. This made the situation here very different from that in R. v. Aslami, 2021 ONCA 249, 155 O.R. (3d) 401, where there were cogent reasons to be concerned that inculpatory text messages and emails purportedly sent by the accused to his estranged spouse might not have been genuine. As noted above, “rank speculation” that an electronic document might not be genuine is not enough to make the document inadmissible under the CEA.
[42] In any event, in Aslami this court treated the concerns about the potential manipulation or falsification of the text messages and emails in that case as going to their weight, not to their admissibility: see R. v. S.M., 2025 ONCA 18, at para. 28. This accords with Watt J.A.’s comment in C.B., at para. 72, that:[E]ven if there were an air of reality to such a claim [of falsification], the low threshold for authentication, whether at common law or under s. 31.1 of the CEA, would seem to assign such a prospect to an assessment of weight. [43] In summary, while it would have been preferable for the trial judge to have expressly addressed the issue of the admissibility of the two audio recordings under the CEA in his reasons, I am satisfied that he made no error in treating the recordings as having been authenticated to a sufficient extent to clear the low bar for admission under s. 31.1. . R. v. Taylor
In R. v. Taylor (Ont CA, 2026) the Ontario Court of Appeal dismissed a criminal appeal, this brought against the "conviction for the first degree murder of his wife".
Here the court illustrates how internet search engine searches and computer records may used as evidence - and tendency evidence issues that it may give rise too, sometimes apparently uncritically:[5] There was a formidable body of evidence from which the jury could conclude that the appellant planned to kill Wendy. In the months before the killing, the appellant conducted various internet searches, including: “fast acting natural poisons”; “thallium poisoning”; “drugs that cause a heart attack”; “how to pull off the perfect murder”; and “the best way to kill your wife”. On the night in question, the appellant was working on a job a couple of hours from their home. He unexpectedly decided to come home. The appellant turned his phone off and did not bring it with him. He avoided toll roads on his way to and from the killing.
[6] This appeal turns largely on other evidence introduced by the Crown that the appellant contends was problematic. The police seized documents from the appellant’s two laptop computers. One document was entitled “Iain’s list of lies to Sonja” (“the List”) in which he itemized his deceptions to Ms. Aldred. The List included a graphic and vulgar description of the appellant’s sexual exploits (“Item 21”), along with a reflection on his church life (“Item 29”). The police also discovered an internet browser bookmark for an article entitled “Compulsive Liar Treatment”.
[7] No objection was made to the admission of these pieces of evidence before they were led. However, during the cross-examination of the appellant about the List, the trial judge, without prompting, expressed concern that Item 21 should not have been admitted. He prohibited the Crown from cross-examining the appellant on it. He also gave a cautionary instruction about Item 21 in his final instructions to the jury. Even so, an unredacted, poster-sized version of the List was made an exhibit and was in the jury room during deliberations.
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(2) The Internet Searches
[20] The appellant repeatedly searched the internet about how to kill his wife.
[21] The appellant started his internet searches about poisons and other methods to kill his wife within days of meeting Ms. Aldred. His initial searches, from late June and early July of 2013, included “fast acting natural poisons”, “drugs that cause a heart attack” and “how to pull off the perfect murder”.
[22] After the text message fiasco, the intensity of the appellant’s internet searches increased. On August 16, 2013 – four days after the appellant accidentally sent the text to Ms. Aldred – the appellant searched “the best way to kill your wife”, “the best way to kill your spouse”, “untraceable poisons”, “Easy to Make Poisons”, and “the perfect murder”. The appellant also accessed webpages including “How to: Murder Your Wife on a Budget”, “KILLMYWIFE.COM” and “If You’re Going To Kill Your Spouse, You Probably Shouldn’t Google ‘How To Commit Murder’”.
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(2) The Bookmarked Webpage
[53] In addition to the appellant’s “how to” and related internet searches, the Crown introduced evidence that the appellant accessed and bookmarked an article entitled “Compulsive Liar Treatment.” A screen shot of the article was included on a PowerPoint slide introduced through the evidence of the officer who examined the appellant’s computers. The PowerPoint presentation was made a numbered exhibit. The trial Crown referred to it in her closing address.
(3) The Presentation of the Evidence
[54] A number of items of evidence derived from the search of the appellant’s computers were introduced through the officer who performed the search – Det.-Sgt. James Falconer. He presented the evidence of the appellant’s online searches and the compulsive liar bookmark. He was also asked to read some items from the List.
[55] The Crown had Ms. Aldred read to the jury her extensive correspondence with the appellant, starting when they met on eHarmony. The Crown also asked Ms. Aldred to read from the List. In particular, she was made to read Item 21. Ms. Aldred had never seen this document before testifying. Before reading Item 21 aloud, Ms. Aldred said, “I don’t know that I can read this”. After reading a portion of the item, she asked the Crown if she really had to read it. The Crown told her that she did. Once she finished reading the item, Ms. Aldred said, “That was never, ever spoken to me.”
[56] During a break after Ms. Aldred’s testimony, defence counsel objected to the manner in which the evidence was presented. He submitted that the evidence was admissible, but that it was improper to introduce it through Ms. Aldred because she had not seen the document before. The Crown submitted that this method was appropriate because the document contained the appellant’s “admissions against interest”. The trial judge dismissed the objection, although he did acknowledge the impact of reading Item 21 “on the witness and perhaps some adverse impact it may have made on the jury.” He said, “If that is an issue the defence wishes to promote, I will incorporate it in my charge.”
[57] The issue arose again during the cross-examination of the appellant, when the Crown directed him to Item 21. On his own initiative, the trial judge excused the jury and said the following:I am loathe to interrupt cross-examination, but I think I have to at this point because I’ve been concerned with paragraph 21 for some time since it’s been introduced… very concerned about it because this jury has to be instructed, despite the loathsome, degrading, vulgar comments made and statements made in paragraph 21, despite the fact that they describe sexual conduct, true, imagined or otherwise, which is by some standards highly immoral, despicable, the issue in this case is not whether this man is a philanderer or whether he has any moral compass or not. The issue in this case is has the Crown proven its case beyond a reasonable doubt that he committed first degree murder. [Emphasis added.]
During this colloquy, the trial judge noted that he had not been asked to edit any of Item 21. He further said, “I’m very concerned about this trial not being taken off the rails. I’m not here to protect the accused, but I am not going to have a party convicted because of immoral activity…That’s not going to happen in this court.” [58] The Crown said that “we plan on asking Your Honour to give a very strong limiting instruction on that.” The trial judge responded that he had already written one and “it will be strong and forceful.” The Crown made no further reference to Item 21 for the duration of the trial. However, the list was not redacted. It was entered as an exhibit. A poster board of the List was created and made an exhibit. This poster board followed the jury to the deliberation room.
[59] Throughout the trial, no concern was expressed about other items on the List, nor was any objection made to the compulsive liar bookmark. At paras 79-101 the court engages in a relevance and 'discreditable conduct' analysis of this evidence.
. R. v. S.P.
In R. v. S.P. (Ont CA, 2025) the Ontario Court of Appeal considered the authentication of electronic documents (here a "screenshot of the text message") under the CEA:[10] We agree that the first ground must fail. To authenticate an electronic document for the purposes of admission, s. 31.1 of the Canada Evidence Act, R.S.C. 1985, c. C-5, requires only that there be “evidence capable of supporting a finding that the electronic document is that which it is purported to be.” It does not require this evidence to be provided by an independent witness. In S.M., this court held that the complainant’s testimony was sufficient to authenticate screenshots she took of Snapchat photos: at paras. 10, 27-30. Similarly, in the appellant’s case the trial judge was entitled to find that the complainant’s evidence that the screenshot accurately showed her text message exchange with the appellant was sufficient to meet the “low” authentication threshold: R. v. C.B., 2019 ONCA 380, 146 O.R. (3d) 1, at paras. 67-68; S.M., at para. 30. What use should be made of the screenshot was a matter for the jury to decide. . 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. M.S.A.
In R. v. M.S.A. (Ont CA, 2024) the Ontario Court of Appeal dismissed a criminal appeal for sexual assault, here in part on an appeal argument related to electronic evidence and the 'best evidence' rule [CEA s.31.2]:Electronic evidence
[13] The Crown sought to adduce electronic evidence taken by the complainant: audio recordings and a set of text messages. The appellant argued the recordings had been altered as the time stamps in the metadata did not coincide with the dates the recordings were said to be made. The trial judge accepted that this discrepancy was explained by the complainant having transferred the recordings from her phone to her computer.
[14] The appellant submits that the trial judge erred in his treatment of the electronic evidence. Raised for the first time on appeal is the argument that the trial judge did not comply with the best evidence rule set out in s. 31.2 of the Canada Evidence Act, R.S.C. 1985, c. C-5.
[15] Sections 31.1-31.2 provide that electronic documents must be authenticated by adducing evidence that they are what they purport to be. They must then satisfy the best evidence rule to ensure that the electronic document accurately reflects the original information that was input. There is a presumption of integrity of the document and these rules have a low bar.
[16] We do not accept the appellant’s submissions for two reasons. First, the low bar for admission would easily have been met by the complainant’s evidence that the texts and recordings accurately reflected what she saw and heard. Second, the trial judge’s credibility analysis did not depend on the admission of the electronic evidence. . 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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