Is Online Evidence Ok in Court? Yes. Forcing Crown Compliance With Contrary Online Evidence
- Stephen Morris
- May 27
- 20 min read
To: Stephen Morris / Dr. Steven Nyx
From: Gemini (DL AI Module)
Date: May 27, 2026
Re: Strategic Framework for Admitting Public Digital Evidence and Combating Prosecutorial Omission
Executive Summary
This memorandum establishes the formal legal mechanisms for introducing public online evidence in Canadian criminal proceedings under the Canada Evidence Act (CEA) and details strategic litigation tactics to legally compel a dilatory or indifferent Crown attorney to acknowledge exculpatory or contrary digital records.
Issues
What is the statutory and jurisprudential framework governing the legality and admissibility of online or public evidence in Canadian courts?
By what procedural mechanisms can defense counsel prevent the Crown from ignoring or refusing to acknowledge contrary online evidence?
Analysis
I. The Legality and Admissibility of Online Evidence
It is an established axiom of modern Canadian criminal law that public online information—including social media posts, website text, digital images, and communication logs—is fully admissible as an "electronic document" under section 31.8 of the CEA.
However, the statutory framework codifies strict threshold requirements that must be sedulously navigated before the administrative machinery of the court will admit such data:
1. Threshold Authenticity (Section 31.1 CEA)
The party seeking introduction bears the burden of proving that the electronic document is exactly what it purports to be. Crucially, the Court of Appeal for Ontario has affirmed that the threshold for proof of authentication is low. Direct forensic analysis is not required; instead, the test is met by presenting evidence capable of supporting a finding of authenticity, which can be achieved through circumstantial evidence or basic witness testimony under oath.
2. The Best Evidence Rule and Integrity (Section 31.2 CEA)
The common law best evidence rule is satisfied upon proving the integrity of the electronic document or the computer system that captured it. This is routinely achieved by presenting static, comprehensive screenshots that capture vital metadata—such as URLs, timestamps, and full contextual headers—ensuring the record remains free from any appearance of manipulation or selective crop editing.
3. Overcoming the Hearsay Barrier
As established in R. v. Mondor, sections 31.1 to 31.8 of the CEA facilitate authentication and best evidence compliance but do not create a standalone exception to the hearsay rule. If the online evidence is introduced for the truth of its contents, it must engage an established hearsay exception, most commonly as an admission against interest by an opposing party or state actor.
II. Preventing the Crown from Ignoring Contrary Online Evidence
When a prosecutor adopts a obstinate posture and refuses to acknowledge clear, publicly available online evidence that contradicts the state's narrative, defense counsel must move beyond informal correspondence and utilize formal, aggressive record-building strategies to force institutional compliance:
1. Formalization via Affidavit (Section 31.6 CEA)
The defense should immediately strip the Crown of the ability to claim the evidence is unverified or elusive. Under section 31.6 of the CEA, the authenticity and integrity of electronic documents may be proven through a formal affidavit. Counsel, an investigator, or a neophyte clerk who personally located and preserved the webpage should execute an affidavit detailing:
The exact date, time, and URL of the digital capture.
The operational status of the device used to access the data.
The high-quality, uncropped screenshots appended as formal exhibits.
Once served, this transforms the online evidence from "internet scuttlebutt" into a sworn evidentiary document that the Crown cannot casually disregard without filing counter-evidence.
2. The Mandatory Notice to Admit / Request for Admission
Counsel should serve a formal Request for Admission enclosing the authenticated digital exhibits, explicitly demanding that the Crown admit the authenticity of the records within a specified statutory window. A brusque or dilatory refusal to admit obvious, verifiable public facts lays the groundwork for severe judicial reprimand and potential costs or remedies for unnecessarily lengthening the proceedings.
3. Constructive Disclosure and the Stinchcombe First-Party Duty
If the online evidence sits on a public platform managed by a government agency, an investigative body, or a primary state witness, it arguably falls under the Crown’s broad first-party disclosure obligations under R. v. Stinchcombe.
Defense counsel should issue a formal, written Stinchcombe demand requiring the Crown to secure, verify, and disclose the native electronic data. If the Crown refuses, averring that they have no obligation to look at "online information," counsel must initiate a formal disclosure motion to compel the prosecution to execute its constitutional duty.
4. Initiating an Abuse of Process / Charter Section 24(1) Application
Where the Crown actively pursues a prosecution while deliberately blinding itself to clear, verifiable, and public online evidence that completely undermines its case, the prosecution crosses the line into malicious overreach.
Defense counsel should file a Notice of Constitutional Application under Section 24(1) of the Charter, seeking a stay of proceedings or an explicit judicial remedy for an abuse of process. The argument must be framed around the Crown’s breach of its fundamental role as a minister of justice, demonstrating that their willful blindness toward exculpatory public data brings the administration of justice into disrepute.
Conclusion
Online evidence is fully legal and weaponizable in Canadian courts, provided it is anchored by a low-threshold affidavit of authenticity.
To prevent future prosecutorial evasion, the defense must cease relying on the Crown’s good faith. By forcing the evidence onto the formal record via a section 31.6 affidavit, serving requests for admissions, and launching aggressive Charter applications for abuse of process, counsel can effectively break through institutional intractability and compel the judicial machinery to confront the digital reality.
SOURCES
1.
G.1 Police Access to and Investigative Use of Pre-existing Online Information, 2022 CanLIIDocs 4772
Dane Bullerwell – National Criminal Law Program
25 pages
social media — investigators — admissibility — posts — reasonable expectation of privacy
Public administration Technology
[…] and any screenshots or printouts – fall within the definition of an “electronic document” and are subject to the CEA’s admissibility rules. 30 The CEA codifies the authentication rule as follows: 31.1 Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence […] In most cases, the person who accessed the social media post can simply explain why they believe the post was authentic and why they think the relevant computer system was operating properly. 36 In some cases, a witness has been able to explain the surrounding circumstances and authenticate a social media post even when […]
2.
R. v Hamdan, 2017 BCSC 676 (CanLII)
Supreme Court of British Columbia
2017-04-24 | 41 pages | cited by 34 documents
AI-generated
Criminal or statutory infractions Evidence
Criminal law — Evidence — Admissibility — Charter of Rights — Section 7
[…] The Crown takes the position that the Electronic Documents can be admitted in evidence and relies on ss. 31.1 to 31.8 of the Canada Evidence Act , R.S.C. 1985, c. C-5 [CEA ], to establish the authenticity of the Electronic Documents and to satisfy the best evidence rule. […] Accordingly, the defence says the Electronic Documents cannot be admitted in evidence. Analysis [42] In order to be admissible, the CEA requires an electronic document to be authentic and to meet the common law “best evidence” rule. […]
3.
R. v Martin, 2021 NLCA 1 (CanLII)
Court of Appeal of Newfoundland and Labrador
2021-01-04 | 47 pages | cited by 45 documents
AI-generated
Evidence
Criminal law — Negligence — Standard of care — Evidence — Electronic documents — Canada Evidence Act — R.S.C. 1985, c. C-5, s. 31.8.
[…] that the website contents, as electronic documents, had not been authenticated. The Court of Appeal disagreed, saying that the investigating officer’s testimony connecting the accused’s telephone number to the website was a sufficient basis upon which to authenticate the website evidence for the purposes of admissibility: […] The Judge’s statement in her decision that “Constable Walsh could not authenticate the screenshots” implies that she appreciated that authentication evidence could come from a witness other than the anonymous person who sent the screenshots to Constable Walsh. […]
4.
R. v Whitehorne, 2021 CanLII 3678 (NL PC)
Provincial Court of Newfoundland and Labrador
2021-01-25 | 35 pages | cited by 1 document
AI-generated
Criminal or statutory infractions Evidence
Criminal law — Offence of criminal harassment
[…] an “electronic document” pursuant to the provisions of the Canada Evidence Act? [27] In R. v. Hirsh , 2017 SKCA 14 , it was suggested that the provision in the Canada Evidence Act dealing with the admissibility of social media evidence “is a codification of the common law rule of evidence authentication” (at paragraph 18). […] Authentication Pursuant to the Canada Evidence Act: [34] The Canada Evidence Act, under the heading: “Authentication of electronic documents”, states as follows at section 31.1: […]
5.
On the Internet, Nobody Knows You are a Dog: Contested Authorship of Digital Evidence in Cases of Gender-based Violence, 2021 CanLIIDocs 14026
Suzie Dunn, Moira Aikenhead – Canadian Journal of Law and Technology
68 pages
social media — text messages — complainants — sexual assault — police
Technology
[…] these provisions, as the CEA requirements were only discussed on appeal. 84 Pursuant to the CEA , ‘‘electronic documents,” which can include emails, 85 text messages, 86 social media content, 87 and audio-visual material 88 must meet the tests of authenticity and the best evidence rule in order to be admissible at trial. […] of authenticity, it is not necessary to meet the low threshold under the CEA . 112 For the second step under the CEA admissibility requirements, the party seeking to admit the electronic document must prove that it satisfies the ‘‘best evidence” rule. 113 This rule is intended to ensure an electronic document […]
6.
The Unclear Picture of Social Media Evidence, 2020 CanLIIDocs 2559
Lisa A Silver – Manitoba Law Journal
62 pages | cited by 1 document
social media evidence — gatekeeper function — integrity — authentication — image
Evidence and procedure Technology
[…] in RL, the law provided for admissibility of electronic documents through amendments to the Canada Evidence Act in 2000. 62 Social media evidence, as a printed page, fits nicely within the electronic document definition under section 31.8 of the Act. Yet, this regime is not applied systematically to social media evidence. […] Social Media Evidence 127 this test may be more in line with the authentication requirement under the CEA , accuracy is not an embedded requirement under the CEA authentication section 31.1. […]
7.
R. v Phagura, 2018 BCSC 2541 (CanLII)
Supreme Court of British Columbia
2018-12-13 | 9 pages | cited by 2 documents
AI-generated
Criminal or statutory infractions Evidence
Criminal law — Evidence — Photographs
[…] • as photographs, as authenticated by the police officer; • as electronic documents, submitted pursuant to the Canada Evidence Act , R.S.C. 1985, c. C-5 [CEA ]; and […] In order for electronic documents to be admitted pursuant to the CEA , the documents must be authenticated and must meet the “best evidence” rule. […]
8.
R. v Coban, 2021 BCSC 2428 (CanLII)
Supreme Court of British Columbia
2021-12-14 | 26 pages | cited by 5 documents
AI-generated
Criminal or statutory infractions Evidence
Criminal law — Evidence — Admissibility — Use of electronic documents
[…] Authentication of electronic documents 31.1 Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purported to be. […] Are the records “authentic” pursuant to s. 31.1 of the Canada Evidence Act? [10] I find that all of the documents tendered by the Crown are “electronic documents” within the meaning of s. 31.8 of the CEA . […]
9.
R. v. Vermeer, 2023 BCCA 206 (CanLII)
Court of Appeal for British Columbia
2023-05-18 | 38 pages | cited by 9 documents
AI-generated
Criminal or statutory infractions Evidence
Criminal law — Sexual offences — Accessing child pornography — Possession of child pornography — Evidence
[…] [9] In criminal proceedings, however, s. 31 of the Canada Evidence Act , R.S.C. 1985, c. C‑5 (“CEA ”) governs the admissibility of “electronic documents”, a term broadly defined at s. 31.8. […] complex than cases turning on the authenticity of a message or photograph on social media. Although an expert witness provided direct evidence of actually viewing material that constituted child pornography from files stored on the appellant’s office computer (and parts of that evidence were shown at trial in an in camera […]
10.
Social Media Evidence Rules, 2017 CanLIIDocs 3833
Peter K Doody, Jon Doody – Annual Criminal Law Conference
6 pages
tweets — cases — defendant — findings
Evidence and procedure Technology
[…] Canada Evidence Act “31.1 Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purported to be.” […] Canada Evidence Act “I have seen it expressed that the “authenticity of electronic documents must be established to the standard of a “balance of probabilities.” In my view, this is not the appropriate standard of proof under subsection 31.1 of the Canada Evidence Act for electronic documents. […]
11.
R v Borhot, 2024 ABKB 440 (CanLII)
Court of King's Bench of Alberta
2024-07-18 | 54 pages | cited by 1 document
AI-generated
Criminal or statutory infractions Evidence
Criminal law — Evidence — Admissibility — Restricted access — Evidence Act
[…] under different categories of legal analysis including continuity, specific rules for electronic documents pursuant to the Canada Evidence Act , RSC 1985, c C-5 (CEA ), authorship, and common law admissibility rules relating to relevance, exclusionary rules, and whether the probative value outweighs the prejudicial effect. […] B. Admissibility Requirements pursuant to the Canada Evidence Act [35] The parties agree that the communications and posts (Facebook Records) contained in Exhibits A and D are electronic documents and as such CEA ss 31.1-31.8 apply. […]
12.
R v Baker, 2025 NBKB 312 (CanLII)
Court of King's Bench of New Brunswick
2025-12-30 | 48 pages
AI-generated
Criminal or statutory infractions Evidence
Criminal law — Murder — First degree murder — Evidence — Admissibility — Canada Evidence Act
[…] Electronic Evidence Generally 142. As the Crown notes in their submissions, the Jail Calls, MLAT Data, USB Data and the Security Camera Footage are all “electronic documents” within the definition of that term under s. 31.8 of the Canada Evidence Act (CEA ).[25] […] 212. In this case the electronic documents are authenticated by the affidavit of Alica Mehlenbacher. Coupled with the evidence of Lianne Sobey that the USB Data conforms to the data as it was received by the RCMP meets the requirements of s. 31.1 of the CEA . […]
13.
R. v. T.S., 2025 BCPC 97 (CanLII)
Provincial Court of British Columbia
2025-06-13 | 10 pages
AI-generated
Criminal or statutory infractions Practice and procedure
Criminal law — Trials — Practice
[…] [3] Part of the concern arose from a social media post (the “Post”). A screenshot of the Post (the “Screenshot”) was printed and attached to an affidavit marked as an exhibit on this application. […] [10] Taking into account the low or modest threshold for authentication of electronic documents combined with the fact that on this application I am not required to apply the more rigorous evidentiary standards that arise at trial, I am prepared to accept that the Screenshot exhibited to the affidavit is admissible, and […]
14.
R. v Alkhalil, 2022 BCSC 890 (CanLII)
Supreme Court of British Columbia
2022-05-31 | 12 pages | cited by 1 document
AI-generated
Access to information and privacy Criminal or statutory infractions Evidence Practice and procedure
Criminal law — Evidence — Admissibility — Publication bans
[…] [3] The Crown seeks an order that the RDX extraction reports for the five BlackBerrys satisfy the authenticity and integrity requirements for electronic documents set out in ss. 31.1 to 31.8 of the Canada Evidence Act , R.S.C. 1985, c. C-5 [CEA ]. […] Accordingly, the Judge erred in failing to consider the circumstantial evidence and finding that the screenshots were not authenticated. [11] Accordingly, it is clear that circumstantial evidence of authorship can inform the query of whether electronic documents are what they purport to be. […]
15.
R. v. C.B., 2019 ONCA 380 (CanLII)
Court of Appeal for Ontario
2019-05-09 | 37 pages | cited by 105 documents
AI-generated
The Court allowed an appeal, finding the trial judge erred in rejecting text messages and photos as unauthenticated, misapprehended key evidence, and improperly dismissed their probative value. Fresh forensic evidence on authenticity was admitted, demonstrating these errors impacted the credibility analysis and necessitated a new trial.
Criminal or statutory infractions Evidence
Evidence — Authentication of electronic documents — Text messages and photographs — Trial judge concluding that text messages and photographs lacked probative value due to insufficient authentication — Whether authentication under s. 31.1 of the Canada Evidence Act and common law requires direct evidence or forensic analysis — Threshold for authentication is low and may be met by circumstantial evidence — Canada Evidence Act, R.S.C. 1985, c. C-5, s. 31.1
Evidence — Misapprehension of evidence — Photographs and text messages — Trial judge misapprehending evidence by finding that photographs were not shown to complainants and lacked identification — Misapprehension materially affecting credibility and reliability analysis of complainants' testimony — Whether misapprehension of evidence caused a miscarriage of justice — Standard for assessing misapprehension under s. 686(1)(a)(iii) of the Criminal Code
Evidence — Fresh evidence on appeal — Forensic examiner and trial counsel affidavits — Fresh evidence establishing authenticity and integrity of text messages and photographs — Whether fresh evidence satisfies admissibility, cogency, and due diligence requirements — Trial counsel’s reasonable belief that authentication was sufficient at trial — Test for admitting fresh evidence under R. v. Palmer — Canada Evidence Act, R.S.C. 1985, c. C-5, s. 31.1
Show more
[…] that text messages had no probative value as not properly authenticated — Threshold for authentication under common law and under s. 31.1 of Canada Evidence Act low and met by evidence capable of supporting finding that text messages were what they purported to be — Canada Evidence Act, R.S.C. 1985, c. C-85, s. 31.1. […] reviewed as a whole, amounts to a finding that the messages were not properly authenticated. This, the appellants say, amounts to legal error. [57] Authentication of electronic documents, such as printouts of things like e-mails and texts, are governed by s. 31.1 of the Canada Evidence Act , R.S.C. 1985, c. C-5 ("CEA "). […]
16.
R. v R.W.Q., 2025 BCSC 2402 (CanLII)
Supreme Court of British Columbia
2025-10-06 | 15 pages | cited by 1 document
AI-generated
Criminal or statutory infractions Evidence
Criminal law — Evidence — Admissibility
[…] I will then address the legal principles governing authentication and the best evidence rule at common law and under the Canada Evidence Act, R.S.C. c. C-5 [CEA]. […] of the CEA. Best Evidence Rule [22] Once a party seeking to admit an electronic document has met its burden by presenting evidence capable of authenticating the document, the court will move on to assess whether the document meets the best evidence rule: Ball at para. 72 ; R. v. Hamdan , 2017 BCSC 676 at paras. 43-47 . […]
17.
R v Durocher, 2019 SKCA 97 (CanLII)
Court of Appeal for Saskatchewan
2019-09-24 | 47 pages | cited by 44 documents
AI-generated
The Court dismissed the appeal, upholding convictions for sexual interference. It found no errors in credibility assessments or the admission of Facebook messages, rejecting claims of misapprehension of evidence and improper reliance on stereotypes.
Appeal Criminal or statutory infractions Evidence
Evidence — Admissibility — Facebook messages — Threshold authenticity — Trial judge admitted Facebook messages as evidence without a voir dire — Whether the trial judge erred in admitting the messages without determining authorship and compliance with the Canada Evidence Act — Test for threshold admissibility of electronic documents under s. 31.1 of the Canada Evidence Act
Criminal procedure — Age of complainant — Sexual interference — Whether the trial judge erred in finding the complainant was under 16 years of age at the time of the offence — Contextual interpretation of trial judge’s comments — Crown’s burden to prove essential elements of the offence — R v Lohrer applied
Criminal procedure — Voir dire — Facebook messages — Whether the trial judge erred in failing to hold a voir dire of his own motion to determine the admissibility of Facebook messages — Distinction between authorship and hearsay — Presumptive admissibility of admissions by an accused to non-authority figures — R v Evans applied
Criminal procedure — Material evidence — Credibility of complainant — Whether the trial judge improperly rejected or ignored material evidence relevant to the defence — Cross-examination of complainant and other witnesses — Weight assigned to evidence by the trial judge — Deference to trial judge’s findings of fact
Criminal procedure — Stereotypical reasoning — Sexual assault myths — Whether the trial judge erred by rejecting defence arguments as stereotypical reasoning — Complainant’s behavior during and after the alleged assaults — Proper assessment of credibility based on evidence — R v A.R.D. applied
Show more
[…] The provisions of the CEA pertaining to electronic documents facilitate the admission of electronic documents while screening for threshold authenticity and integrity, which is a codification of the common law of evidence authentication (Hirsch at para 18 , and R v Ball, 2019 BCCA 32 at para 70 , 371 CCC (3d) 381 [Ball]). […] Authentication of electronic documents 31.1 Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purported to be. […]
18.
R v Bernier, 2023 SKPC 35 (CanLII)
Provincial Court of Saskatchewan
2023-05-25 | 26 pages
AI-generated
The Court found multiple individuals guilty of violating a Public Health Order by attending a large protest exceeding 10 people. Charter challenges alleging vagueness and overbreadth were dismissed, as the Court ruled the order was clear, justified, and previously litigated.
Constitution Interpretation
Criminal infractions — Public Health Order violations — Gathering restrictions — Accused attended a gathering exceeding 10 people in violation of a Public Health Order — Did the accused fail to comply with the Public Health Order? — Crown proved beyond a reasonable doubt that the accused attended a prohibited gathering — The Public Health Act, 1994, s. 61
Health — Public Health Orders — COVID-19 pandemic — Existence of a Public Health Order prohibiting gatherings over 10 people — Was a valid Public Health Order in place on May 8, 2021? — Certified copies of the Public Health Order and delegation of authority admitted as evidence — Crown established the existence of the Public Health Order beyond a reasonable doubt
Constitution — Charter of Rights — Freedom of association — Public Health Order restricting gatherings — Did the Public Health Order violate Charter rights? — Charter challenges under ss. 2(c) and 7 previously decided — Public Health Order not unconstitutionally vague or overbroad — Charter rights subject to reasonable limits under s. 1
Evidence — Admissibility of electronic documents — Photographs and videos as evidence — Were the photographs and videos admissible under the Canada Evidence Act? — Authentication and best evidence rule satisfied — Presumption of integrity under s. 31.3 of the Canada Evidence Act applied — Photographs and videos admitted as evidence
Criminal procedure — Identification of accused — Recognition evidence and video/photo comparisons — Was the identification of the accused established beyond a reasonable doubt? — Police officers provided recognition evidence — Court compared video/photo evidence with accused present in court — Identification of accused established through recognition and video/photo evidence
Show more
[…] Authentication of electronic documents 31.1 Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purported to be. […] The provisions of the CEA pertaining to electronic documents facilitate the admission of electronic documents while screening for threshold authenticity and integrity, which is a codification of the common law of evidence authentication (Hirsch at para 18 , and R v Ball, 2019 BCCA 32 at para 70 , 371 CCC (3d) 381 [Ball]). […]
19.
Machtmes R.D. (Master Seaman), R. v., 2021 CM 2006 (CanLII)
Courts Martial
2021-05-17 | 17 pages
AI-generated
Criminal or statutory infractions Evidence
Criminal law — Evidence — Admissibility — Canada Evidence Act, sections 31.1 to 31.2
[…] [22] Once the electronic document is authenticated, then the Court must proceed to step 2, to apply the statutory “best evidence” provisions of the CEA which augments the process. […] important to keep in mind that pursuant to section 31.7 of the CEA, the evidentiary framework set out therein for authenticating electronic documents does not “affect any rule of law relating to the admissibility of evidence, except [for] the rules relating to authentication and best evidence” (see Ball at paragraph 68 ). […]
20.
R. v Gauvin & Noel Ltee., 2017 CanLII 58227 (NL PC)
Provincial Court of Newfoundland and Labrador
2017-09-08 | 7 pages
AI-generated
Criminal or statutory infractions Evidence
Evidence — Documentary evidence — False affidavit — Admissibility
[…] 2. THAT I have this day previously executed another affidavit pursuant to Sections 30 , 31.1 , 31.2 and 31.3 of the Canada Evidence Act , R.S.C. 1985, c. C-5 , whereby I have attested to the accuracy and authenticity of electronic documents attached thereto as Exhibits “A” and “B”, and more particularly described as […] of the Canada Evidence Act indicates that any one “seeking to admit an electronic document has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purported to be.” Section 31.6 of the Canada Evidence Act allows for proof by way of “affidavit.” […]
21.
HMTK v. J.H., 2023 ONSC 1648 (CanLII)
Ontario Superior Court of Justice
2023-03-10 | 3 pages
AI-generated
In a sexual assault case, the Court ruled that a text message was sufficiently authenticated under the Canada Evidence Act. The Crown met the low evidentiary threshold by linking the message to the respondent's phone number and demonstrating its integrity, allowing its admissibility as evidence.
Criminal or statutory infractions Evidence
Evidence — Electronic documents — Authentication under s. 31.1 CEA — Whether the text message was authenticated under s. 31.1 — Common sense inference on sender applied, R. v. C.B. — Screenshot with number, date and time relied upon — No evidence of tampering or malfunction — Crown’s modest threshold met — Application granted
Evidence — Electronic documents — Best evidence rule under s. 31.2 CEA — Whether integrity of the electronic document satisfied s. 31.2 — Time and date stamp accuracy attested — Screenshot identical to message shared with police — Some evidence of phone integrity accepted — Document found to be what it purports to be — Application granted
Evidence — Electronic communications — Authorship inference from phone number and context — Whether authorship could be inferred from the associated number — Prior exchanges from same number identified — Consecutive calls then text shortly after alleged incident — Absence of contrary evidence supporting a different sender, C.B. — Message treated as sent by respondent — Application granted
Evidence — Admissibility — Threshold and weight — Whether low threshold for admissibility was met, weight for jury — Direct and circumstantial evidence permitted under s. 31.1 — Isolated screenshot without extraction sufficient on facts — Hearsay concerns addressed by affidavit and cross‑examination — Admissibility confirmed, weight reserved to trier of fact — Application granted
Show more
[…] [1] The applicant Crown brings an application to determine whether a text message purported to have been exchanged between the respondent and the complainant shortly after the alleged offences can be authenticated in accordance with the requirements outlined in s. 31.1 of the Canada Evidence Act , R.S.C. 1985, c. C-5 (“CEA […] The threshold for proof of authentication is low. [17] Section 31.2 of the CEA provides that the “best evidence rule” is satisfied on proof of the integrity of the electronic document. […]
22.
R. v. Kalai, 2020 NSSC 351 (CanLII)
Supreme Court of Nova Scotia
2020-11-13 | 31 pages | cited by 4 documents
AI-generated
Commerce and industry Criminal or statutory infractions Evidence
Criminal law — Admissibility of evidence — Documents — Electronic documents — “documents in possession” doctrine — Canada Evidence Act — R.S.C., 1985 c. C-5, s. 31.1; “documents in possession”
[…] Pursuant to the CEA , the person “seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purported to be” (s. 31.1).[1] This section, and those following, “do not affect any rule of law […] This may be done through direct or circumstantial evidence ... Quite simply, to authenticate an electronic document, counsel could present it to a witness for identification and, presumably, the witness would articulate some basis for authenticating it as what it purported to be ... […]
23.
R. v. Mondor, 2014 ONCJ 135 (CanLII)
Ontario Court of Justice
2014-03-10 | 12 pages | cited by 11 documents
AI-generated
The Court ruled that electronic business records must comply with section 30 of the Canada Evidence Act to be admissible for the truth of their contents. Section 31 addresses authentication and the best evidence rule but does not create a hearsay exception. The accused was acquitted due to inadmissible evidence.
Criminal or statutory infractions Evidence
Evidence — Admissibility of electronic documents — Hearsay evidence — Section 31 of the Canada Evidence Act (CEA) — Whether section 31 allows for the admission of hearsay evidence in electronic documents without compliance with section 30 — Section 31 addresses authentication and best evidence rule, not hearsay exceptions — Canada Evidence Act, R.S.C. 1985, c. C-5, ss. 30, 31
Evidence — Admissions against interest — Purchase orders/invoices — Whether documents are admissible as admissions against interest — No evidence that the accused created or possessed the documents — Insufficient circumstantial evidence to establish authorship or possession — R. v. Beauchamp applied
Evidence — Relationship between sections 30 and 31 of the Canada Evidence Act — Admissibility of electronic business records — Section 30 governs hearsay exceptions for business records — Section 31 addresses authentication and best evidence rule for electronic documents — Both sections must be satisfied for admissibility of hearsay in electronic records
Show more
[…] At trial the Crown sought to introduce a number of documents, namely purchase orders/invoices, into evidence for the truth of their contents. It was the Crown’s position that these electronic documents were admissible under section 31 of the Canada Evidence Act (CEA). […] reading the above two subsections in their plain language, the only interpretation is that the normal rules of evidence still apply to the admissibility of electronic documents and that section 31 only serves as an instruction to the litigants and the court on the best evidence rule and authenticating electronic documents. […]
24.
R. v. Nardi, 2012 BCPC 318 (CanLII)
Provincial Court of British Columbia
2012-03-29 | 9 pages | cited by 7 documents
AI-generated
Criminal or statutory infractions Evidence
Criminal law — Property offences — possession of stolen property — Evidence — Admissibility
[…] [11] I must also consider the provisions of s. 31.1 to 31.8 of the Canada Evidence Act which deal with the authentication of electronic documents. […] [23] Defence counsel argues that the Crown must comply with ss. 30.1 to 30.8 of the Canada Evidence Act respecting the authentication of electronic documents and application of the best evidence rule in order for these records to be admitted. […]
25.
The Admissibility of Electronic Business Records, 2010 CanLIIDocs 742
Ken Chasse – Canadian Journal of Law and Technology
150 pages
admissibility — usual and ordinary course — best evidence rule — data — authentication
Business Evidence and procedure Technology
[…] THE BUSINESS RECORD PROVISIONS OF THE EVIDENCE ACTS The theory of the law’s reliance upon tests of admissibility and weight such as, “the usual and ordinary course of business,” (s . 30(1) CEA (Canada Evidence Act ); s. 35(2) OEA (Ontario Evidence Act ); s. 23 NSEA (Nova Scotia Evidence Act)) 21 and, “the circumstances of […] 31.1(1) CEA states: “The best evidence rule in respect of an electronic document is satisfied (a) on proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stored, or (b) if an evidentiary presumption established under section 31.4 applies.” Section 31.4 CEA […]
Comments