Authentication of digital media by the tendering party is a precondition for admissibility at trial. The focus of this article is on assessing what level of proof is required in order to meet this requirement and the practical implications of this standard of proof. This article addresses the law and practice in Canada.

Several appellate courts have weighed in on the issue of authentication of digital media over the past few years. I will use the most recent appellate decision to begin this discussion. R. v. Martin, 2021 NLCA 1, a decision of the Newfoundland and Labrador Court of Appeal, addressed the admissibility of screenshots of Facebook posts purportedly belonging to the defendant. The defendant was charged with unlawful possession of a firearm and uttering threats to police officers. At trial, the Crown sought to tender printouts of six screenshots which it asserted were obtained from the defendant’s Facebook page. Following a voir dire on this issue, the trial judge excluded the Facebook evidence, causing the Crown’s case to collapse. The Crown appealed this ruling.

The Facts

Police were called to the defendant’s residence regarding a complaint of a domestic disturbance. The attending officers determined that no formal action was required and left the residence. The following night, police received an anonymous tip that the defendant had posted images and words on Facebook that were suggestive of a desire to harm police officers. Officers attended the defendant’s residence to investigate the threats but were not permitted entry. Police were unable to access the defendant’s Facebook page and so the tipster was contacted by police, and he/she emailed the six screenshots to the investigating officer. All six screenshots were addressed to one specific officer and showed the defendant with a firearm, with some of the images bearing a written threat alongside. 

During the voir dire, several police officers who investigated the original complaint and the ensuing threats testified. In general, their testimony served to link what was observed in the Facebook images with what they observed when at the defendant’s residence. This included the room depicted, the defendant himself, and the clothing he wore. Also located during a lawful search was ammunition, though no firearm was located, nor a computer. An expert witness testified that the ammunition was compatible with the rifle shown in the Facebook images. The tipster who originally obtained the Facebook screenshots did not testify, nor did the defendant. 

The Trial Ruling

The trial judge excluded the Facebook images on the basis that the police were unable to authenticate them. More specifically, the judge found that the police were unable to confirm that the defendant had a Facebook account, who had access to any such account, or whether the postings could only have been made by the defendant. Further, there was no evidence as to whether the postings had been altered, and no computer or firearm had been located during the execution of the search warrant. 

The Appeal

The key issue on appeal was whether the trial judge erred in excluding the screenshot evidence. Resolution of this issue required determining whether the judge utilized the correct legal standard for authentication and if so, whether it was correctly applied. 

The admissibility of digital evidence is largely addressed by s. 31.1 of the Canada Evidence Act, which provides

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.    

Facebook posts have been determined to be electronic documents as defined in s. 31.8 of the CEA by several appellate courts in Canada. They are thus deemed to constitute data that has been recorded on a computer system, medium, or similar device which can be read or perceived by a person, computer system, or other device, and they originate from an electronic source and are stored electronically. 

The provisions of the CEA, first introduced in 2000, did not create a new standard for admission but rather simply codified existing common law. The majority of the Court noted that the threshold for the admission of authenticated electronic documents is low, in keeping with the general principle that relevant evidence in a criminal trial is admissible unless subject to an exclusionary rule or where its probative value is outweighed by its prejudicial effect. The majority stated that proof of authenticity is not held to the beyond a reasonable doubt standard or even the balance of probabilities. Nor must the evidence be shown to determine or be capable of determining a finding of authenticity. Rather, as per s. 31.1, the evidence tendered need only be capable of supporting a finding of authenticity. Evidence led for this purpose can be direct or circumstantial in nature. In so ruling, the majority drew support from similar appellate rulings in Ontario (R. v. C.B., R. v. Colosie, R. v. Farouk), Alberta (R. v. Bulldog), Saskatchewan (R. v. Hirsch, R. v. Durocher), and New Brunswick (R. v. Richardson). 

The majority was careful to note that satisfying the low threshold test for admissibility does not equate with a finding of genuineness, nor does it establish authorship. Those are issues for the trier of fact to resolve in the context of all of the evidence presented by the parties. The majority held that the trial judge erred failing to apply the relevant provisions of the CEA and in finding there to be insufficient evidence to meet the threshold admissibility test. The evidence led by the Crown was sufficient to meet this rather low bar for admission in that the officers’ observations of the defendant and his residence connected him with the Facebook posts. 

The dissenting Justice agreed that the standard for admission was low but took issue with how the majority applied it to the evidence. While the circumstantial evidence presented was sufficient to identity the defendant and the residence, it was not sufficient to identify the event depicted and that it was accurately portrayed. In order to rely upon the functioning system presumption of integrity in s. 31.3(a) of the CEA, testimony from the person whose system recorded or stored the screenshots allegedly posted by the defendant or from the person who retrieved the screenshots from the device used by the defendant are required. No such evidence was presented and therefore the Crown was unable to rely upon this statutory presumption. More specifically, the Crown led no evidence as to what device originally recorded the screenshot, there was no evidence that it was working properly, the tipster did not testify, no device was located in the defendant’s residence, and the police did not find a Facebook account belonging to the defendant. The dissenting Justice would have upheld the trial judge’s ruling and dismissed the appeal. 

Analysis 

A considerable amount of evidence tendered in criminal trials is electronic in nature. The CEA amendments did not change the common law but rather encapsulated it in codified form. There is a significant difference between assessing evidence for threshold admissibility and using it in support of a conviction or acquittal. A comparatively lower standard is required at the threshold stage. To be clear, the tendering party must produce some evidence on the issue of authenticity but only enough to show that the evidence is capable of supporting a finding that the electronic document is that which it is purported to be. Where counsel will fall into error is when they fail to address the issue of authentication at all and lead no evidence on the issue or presume that the evidence is self-authenticating. 

By virtue of the statutory definition of “electronic documents”, the CEA applies to digital images in either single image or video format. Examples of how digital images and video could be authenticated are numerous and include the following:

• Testimony of the person who recorded the images regarding the accuracy of the content shown.
• Testimony of another person present during the event recorded regarding the accuracy of the content shown.
• If the images emanate from a CCTV recording, testimony of a person knowledgeable about the operation of the system.
• A forensic video technician or analyst who can assess the technical integrity of the images.
• Other media or evidence which tends to support the integrity of the questioned media.
• For images found on Facebook or other social media sites, there should be evidence as to whether the defendant had an affiliated account, whether he/she used it, whether it was accessible to the public, whether images can be uploaded by others, etc. 

There is merit in the opinion of the dissenting Justice in R. v. Martin, advocating for a higher standard for practical application of the low threshold authentication test. While a bare showing of evidence sufficient to meet the threshold test will get the evidence before the trier of fact, more evidence than that would generally be required at trial in order to make substantive use of it. If investigators and counsel direct their attention to issues of authenticity early, they are much more likely to find not only threshold admissibility but also substantive use of digital evidence at trial.