Electronic Evidence Case – Criminal Law and Social Media
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.
R. v. Nde Soh is important because the Court accepted the need to receive evidence on the issue of admissibility as to how the computer system that produced the “electronic documents” worked. That is what is missing from the e-discovery and admissibility case law; e.g., Zenex Enterprises Ltd. v. Pioneer Balloon Canada Ltd., 2012 ONSC 7243 (para. 8). More importantly, it is what is missing from the Sedona Canada Principles—Addressing Electronic Discovery text, the application of which is made mandatory by the Ontario Rules of Civil Procedure—Rule 29.1.03(4). Sedona Canada does not analyze: (1) the meaning and consequences of the “system integrity concept” in the e-records provisions of the Evidence Acts—proof of “records integrity” requires proof of “records system integrity”; (2) the National Standard of Canada for e-records management, Electronic Records as Documentary Evidence CAN/CGSB-72.34-2005 (“72.34”); and, (3) the need of the parties to exchange verifications of compliance, provided by records management experts, of their electronic records management systems (ERMS’s) with the national standard. Its “prime directive” states: “An organization shall always be prepared to produce its records as evidence” (clause 5.4.3(c) at p. 17). It continues: “This dominant principle applies to all of the organization’s business records, including electronic, optical, original paper source records, microfilm and other records of equivalent form and content.”
Computers are only one part of ERMS’s. They incorporate the first technology to allow a record to be separated from a physical “medium of storage” such as paper or microfilm—an e-record is like a drop of water in a pool of water. An e-record is dependent upon its ERMS for its existence, accessibility, and integrity (“integrity” being the word used in the e-record provisions). Therefore the Evidence Acts require proof of “system integrity,” but they purposely don’t define “integrity”—e.g., s. 31.2(1)(a) of the Canada Evidence Act (CEA), and s. 34.1(5),(5.1) of the (Ontario) Evidence Act (OEA) Therefore a standard for measuring “integrity” is needed. The e-records provisions expressly refer to the use of standards, e.g., s. 34.1(8) OEA, and s. 31.5 CEA. And therefore the application of the national standard to e-discovery and admissibility proceedings should be necessary, but the case law ignores it. “System integrity,” the “prime directive,” and the “proportionality principle” (of e-discovery), together they form a triangle of interdependent concepts; “the discovery triangle.” That also is missing from the Sedona Canada Principles text.
Serious defects in ERMS’s are very plentiful and very common, including an inability to access older records, because: (1) there is no law of general application requiring organizations to keep their ERMS’s in compliance with the national standard, or with international standards for e-records management; and, (2) many organizations believe that they can “get along just fine” without their older records. But often in litigation it is the older records that are the most important.
All of these facts and issues are just as relevant in criminal proceedings as they are in civil proceedings. All proceedings that use e-records are subject to ERMS technology. But its legal infrastructure is inadequate. Therefore court and tribunal decisions based upon e-records, have an uncontrolled and unrestricted probability of being inaccurate and therefore unfair.
See further: (1) “The Dependence of Electronic Discovery and Admissibility upon Electronic Records Management,” Slaw blog, Nov. 22, 2013; (2) “Electronic Discovery—Sedona Canada is Inadequate on Records Management—Here’s Sedona Canada in Amended Form,” (2011), 9 Canadian Journal of Law and Technology 135, by Ken Chasse (“Chase”), LSUC & LSBC, in Toronto.