complainant claiming that she did not think she had sent texts as they
were not “how she talked” — Trial judge erring in holding 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.
B and C were convicted of sexual assault and other offences. The two complainants, P and D, alleged that they were assaulted and sexually assaulted by the
accused after being given alcohol and marijuana in B’s basement. At trial, defence
counsel cross-examined P on text messages that she purportedly sent to B at the
time of the alleged sexual assault, and cross-examined D on a photograph showing
both complainants sitting with both accused immediately after the alleged assault.
The texts and photo were extracted by a private investigator from a cellphone given
to him by B’s mother. Defence counsel adduced photographs of screenshots of the
text messages taken by the investigator, who later testified as a defence witness. P
acknowledged that the phone number from which the texts were sent was her
cellphone number and did not initially deny the authenticity of the texts, but later
testified that she did not believe she had sent the texts because she did not “talk
like that”. D identified the persons in the photograph (the two accused and the two
complainants) and acknowledged that it appeared to have been taken in B’s basement and that the group appeared to be happy and “horsing around”.
The trial judge found that the text messages had not been authenticated because
there was no direct evidence from the sender or an expert forensic examination
regarding how the messages were extracted and therefore concluded that they had no
probative value. He also found that the photo had no probative value, as the people in
the photo had not been identified and the photo was not shown to either complainant.
The accused appealed their conviction and sought to adduce fresh evidence from a
computer forensic examiner relating to the authenticity and integrity of the text messages and photos and from trial defence counsel on the issue of due diligence.
Held, the fresh evidence should be admitted and the appeal should be allowed.
The trial judge erred in concluding that the text messages had no probative value
because they had not been authenticated by direct evidence from the sender or
expert opinion evidence from a forensic examiner. Authentication of electronic
documents such as texts is governed by s. 31. 1 of the Canada Evidence Act. To
meet the burden under s. 31. 1, the party seeking to admit an electronic document
must adduce evidence capable of supporting a finding that the electronic document
is what it purports to be. At common law, authentication requires the introduction
of some evidence that the item is what it purports to be. Those modest thresholds
were met in this case. 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. The inference that the
sender has authored a message sent from his or her phone number should be
drawn in the absence of evidence that gives an air of reality to a claim of tampering.
The evidence in this case was capable of supporting a finding that the text messages
were an exchange of communications between P and B.
The Crown conceded that the trial judge misapprehended the evidence relating
to the photograph on which D was cross-examined. That photo was in fact put to
D, and she identified the persons depicted therein. The trial judge’s conclusion
that the complainants were credible witnesses who gave reliable evidence was
central to the findings of guilt. The misapprehension of evidence therefore played
an essential role in the reasoning process that led to the convictions.