|
Evidence - Electronic Documents. 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.
....
[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).
....
[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.
|
