Electronic Evidence: Need for Expertise?

The Manitoba Court of Appeal recently held, in Ducharme v. Borden, 2014 MBCA 5, that electronic evidence did not require expert support for a judge to deal with its admissibility.

We do not endorse the judge’s view that electronic media evidence is of no value unless supported by expert evidence. Expert evidence is limited to information which is likely outside the experience and knowledge of a judge or jury.(para 15)

On the other hand, the issues with such evidence did not make it a matter for judicial notice, either.

While the burden of authenticating evidence for admission was on the proponent of the evidence, in this case the authenticity was not disputed. The question was one of weight. On that question, the MB CA said this:

In our view, a court is quite capable of assessing the weight to give to electronic documents, without the assistance of an expert, when the witnesses to the communications testify and for whom credibility findings can be made on allegations of fabrication, editing or deletion of communications. (para 17)

Are these good propositions for all cases of electronic (digital) evidence, or was this case too easy? The evidence consisted of emails and Facebook posts. There were no business records or transactional documents. The authors of the documents were before the court.

Are there cases in which you would expect to see an expert witness on the nature or reliability of the digital evidence? Would you want one yourself? The Canadian General Standards Board Standard on the use of electronic records as documentary evidence does not say who should be the witness supporting authentication – nor does the Uniform Electronic Evidence Act. Would a records manager be capable of doing the authentication? Can such an expert ever help a judge with the weight of the evidence?

If you are a barrister, would you have wanted, or asked for, an expert? If you are a solicitor, would you take comfort from this decision that your clients’ records are being properly kept?