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Evidence - Photographs. 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. Reimer
In R. v. Reimer (Ont CA, 2024) the Ontario Court of Appeal allowed a criminal s.276 ['Evidence of complainant’s sexual activity'] appeal.
Here the court considers the use of photos as evidence, and whether that use invokes Browne v Dunn:[99] With respect to the injury photos not being shown to Mr. Reimer, I am not persuaded that this undermined the fairness of the trial or compromised the trial judge’s assessment of Mr. Reimer’s credibility. The failure of the Crown to confront Mr. Reimer with these photos was not a violation of the rule in Browne v. Dunn (1893), 1893 CanLII 65 (FOREP), 6 R. 67 (H.L.). The rule in Browne v. Dunn is meant to prevent evidence from being used to contradict answers provided by a witness in their testimony where it would be unfair to do so without giving that witness a chance to explain the apparent contradiction. Mr. Reimer did not testify about whether the complainant was injured. Therefore, the photos were not being used to contradict any answers he had given. They were being offered instead as circumstantial evidence supporting the Crown case. . R. v. D.M.
In R. v. D.M. (Ont CA, 2023) the Court of Appeal considered that the foundation for a photograph may be made by anyone familiar with the scene from personal experience:[31] It is well-established that a person present for an event depicted in photographs may be in a position to authenticate photographs and that, as a result, it is not always necessary to call the photographer as a witness to authenticate photos: R. v. B.S., 2019 ONCA 72; David M. Paciocco, Palma Paciocco & Lee Stuesser, The Law of Evidence, 8th ed. (Toronto: Irwin Law, 2020), at p. 559.
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