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Keep an Eye on those Texts & Photos

May 15, 2019

Court of Appeal finds trial judge erred in failing to acknowledge authenticity and admissibility of texts and photos

In R. v. C.B., the two appellants had been convicted at trial of assault, sexual assault and unlawful confinement of the two 16-year old complainants, arising from events that took place over the course of two days at the home of the appellant C.B. On appeal were issues relating to electronic evidence that had been led at trial. On the main issue, the complainant DP was cross-examined on the basis of texts between her and CB (extracted from CB’s phone) which were contemporaneous to the alleged offences. These texts appeared to show her joking about sex and the use of sex toys, around the time she said she had been sexually assaulted. She acknowledged that the phone number for the phone on which the texts were received was hers, and that one of the texts related to her then-boyfriend. At this point in the judgment Watt J.A., writing for the court, provided a mini-excursus on texting terminology (possibly recounting the witness’s testimony):

But the term “LMFAO”, which was included in her text, could mean several things. It could mean what it says. Or it could mean that somebody is uncomfortable with the situation and is just laughing about it to show them that. It is undisputed that the term “LMFAO” is a common acronym used in text messaging for “laugh my fucking ass off”.

When cross-examination resumed the next day, however, DP denied that a number of the texts sent from her phone were authored by her, because she “did not talk like that,” and suggested that a monitoring app had been placed on her phone by CB. In his reasons for judgment the trial judge emphasized the complainant’s latter statements about the texts, emphasized there had been no forensic evidence led about the texts and stated they had “no probative value” because there was “no evidence as to whose phone it was, who put the messages in the phone.”

The appellants appealed on the basis that the trial judge appeared to have found that the texts had not been authenticated, and thus were inadmissible, when there was sufficient evidence on the record as to the authorship of the texts. Watt J.A. agreed with this argument, tracing the provisions regarding the admissibility of electronic evidence in the Canada Evidence Act and noting that the authentication requirement, s. 31.1, simply mirrored the common law and its very low threshold that there be “some evidence” that the electronic documents were what the offering party purported them to be. With specific record to communications like texts, he remarked:

[69]      At common law, correspondence could be authenticated by the “reply letter” doctrine: to authenticate correspondence as having been sent by one individual to another, evidence is adduced to show it is a reply to a letter sent to that person. As a matter of logic, the same should hold true for text messages and emails. Evidence that A sent a text or email to B whom A believed was linked to a specific address, and evidence of a response purportedly from B affords some evidence of authenticity: David Paciocco, “Proof and Progress: Coping with the Law of Evidence in a Technological Age” (2013) 11 C.J.L.T. 181, at pp. 197-8 (Paciocco).

[70]      In a similar way, text messages may be linked to particular phones by examining the recorded number of the sender and receiving evidence linking that number to a specific individual, as for example, by admission: Paciocco, at p. 198.

[71]      But what of the prospect of tampering? Does it have to be negated before digital evidence can be properly authenticated?

[72]      As a matter of principle, it seems reasonable to infer that the sender has authored a message sent from his or her phone number. This inference is available and should be drawn in the absence of evidence that gives an air of reality to a claim that this may not be so. Rank speculation is not sufficient: R. v. Ambrose, 2015 ONCJ 813 (CanLII), at para. 52. And even if there were an air of reality to such a claim, 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.

Here, it appeared that the trial judge had made two mistakes: he had failed to fasten on the fact that DP had provided testimony proving that the set of texts was a conversation between herself and CB, and he had appeared to require expert forensic evidence in order to establish authenticity, which was unnecessary. Justice Watt concluded on this point:

[78]      Satisfaction of the evidentiary threshold for authentication under s. 31.1 of the CEA or at common law renders the evidence admissible; in other words, available to the trier of fact for ultimate evaluation [editor’s note: assuming, we expect Justice Watt meant, that the evidence does not offend one of the admissibility rules, e.g. hearsay, prior consistent statement]. It does not follow from admissibility that the trier of fact must find that the evidence is in fact what it claims to be. What remains of the dispute after admissibility has been established relates to the weight to be assigned to the evidence. And that issue is left to the trier of fact to decide.

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