The New Brunswick Court of Queen’s Bench recently admitted into a criminal case screenshots of a Facebook conversation that took place the day after an alleged sexual assault between the complainant and the accused. R v Nde Soh, 2014 NBQB 20
The court held – properly, in my view - that the screenshots were electronic documents within the meaning of ss. 31.1ff of the Canada Evidence Act, which reflect the Uniform Electronic Evidence Act. It found that the documents were properly authenticated. It decided that the computer system was sufficiently reliable in the absence of any evidence from Facebook or any independent expert about how Facebook worked – though the complainant herself explained how she used it.
The court also discussed whether the FB chat statements attributed to the accused were hearsay, and decided that they were, but they were admissible as statements by the accused himself, i.e. they fell within a recognized exception to the exclusion of hearsay. The court also reviewed whether the statements should nevertheless be excluded because they were not sufficiently reliable, or because their admission was more prejudicial than their content was probative – and admitted them.
The police officer investigating the complaint had not only taken (and of course saved) screenshots of the conversation, he had also taken (digital) photographs of the screens involved. The court did not need to make a finding about the admissibility of the photos, since it held that the screen shots were better evidence. It seems very clear to me that the photos were also electronic documents, not because they were taken with a digital camera but because they were proferred as evidence as to what was in the computer, i.e. they were exactly the same in law as a printout (or the screenshots). The Uniform Electronic Evidence Act and the Canada Evidence Act expressly include printouts as a form of electronic evidence, where they are to be used to prove the contents of the computer.
s. 31.8: “electronic document” means data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device. It includes a display, printout or other output of that data.
At this stage the documents have been admitted, which is all that the relevant part of the statutes deal with. The trier of facts, probably a jury, will decide if the accused actually sent the FB messages purported to come from an account with his name on it, and what they meant.
The judgment strikes me as just the kind of thing we had in mind in doing the Uniform Act, and that the judge got it right.
Other views? There are not a lot of cases interpreting that part of the Act, so it’s nice that when a case comes long, it’s a useful one.