Electronic evidence requires authentication

The British Columbia Court of Appeal offered guidance on the proper use of evidence from Facebook, finding that it had been improperly introduced in R v Ball. The accused had been convicted of arson, specifically of having set fire to a property of a former friend. He came to the attention of the police when his ex-girlfriend attended at an RCMP detachment to report that he had told her that he was responsible for the fire. She called up her Facebook page on a detachment computer and showed several messages from an account that she identified as belonging to the accused, and which constituted admissions to setting the fire. The officer took photographs of the computer screen with those pages on it.

At trial, those photographs were admitted into evidence, although the accused maintained that the Facebook messages were forgeries. In fact, the British Columbia Court of Appeal noted, whether the photographs were admissible depended on the portions of the Canada Evidence Act dealing with the authentication of electronic documents, but this point seemed to have occurred to no-one at the trial:

[67] Facebook posts and messages, emails and other forms of electronic communication fall within the definition of an “electronic document”. Home computers, smartphones and other computing devices fall within the definition of a “computer system”. Accordingly, the admissibility of Facebook messages and other electronic communications recorded or stored in a computing device is governed by the statutory framework. As with other admissibility issues, where there is reason to question whether an electronic document meets the statutory requirements, a voir dire should be held and a reasoned determination made as to its admissibility. This step is particularly important in the context of a jury trial.

The Court of Appeal noted that the person seeking to introduce an electronic document has the burden of proving its authenticity, based on the best evidence rule. In that regard the Act states:

31.2(1) 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…

In this case, no efforts had been made to authenticate the evidence. That was particularly important given the nature of the evidence and the issues at trial. The alleged admission to lighting the fire would be hearsay, but the timestamps associated with the message would be real evidence. The evidence consisted only of photographs of the computer screen, not printouts. The only evidence of authenticity came from the ex-girlfriend, but she only addressed the content of the messages, not the time stamps or other data. Further, the only evidence about the operation of Facebook messenger came from the ex-girlfriend: however, the accused’s claim was that the messages had been tampered with, and that she was the one who had done the tampering.

The British Columbia Court of Appeal did not conclude that the evidence was not admissible, holding only that “[i]t is sufficient to say there is a realistic possibility that, properly scrutinized, the judge may have justifiably excluded or limited the evidentiary use of the photographs” (para 87). Based on that and other errors, they ordered a new trial.