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EVIDENCE - Documentary evidence - Authentication - Copies - Electronic records

Wednesday, March 03, 2021 @ 6:21 AM  

Lexis Advance® Quicklaw®
Appeal by the Crown from the respondent’s acquittal on charges of possession of a rifle for a purpose dangerous to the public peace and uttering a threat to police. At trial, the Crown sought to tender into evidence printouts of six screenshots depicting what appeared to be posts from the respondent’s Facebook. The screenshots were e-mailed to police by an anonymous source who informed police that the respondent posted pictures and words on Facebook which suggested that he was going to harm police. The previous day, police attended at the respondent’s residence in response to a domestic dispute. Some officers recognized items on the screenshots that they saw in the respondent’s residence. Police officers familiar with Facebook testified that the purported posts had the same format and design as Facebook posts. Various police officers were able to identify the respondent in two of the pictures depicted in the Facebook posts. The trial judge refused to admit the posts after finding that no witness testified to confirm that the alleged postings were found on an authentic Facebook account, no evidence was adduced that the respondent was the author of the postings, and no one testified that the postings were unaltered or unchanged. The Crown argued the trial judge erred in excluding the screenshot evidence. 

HELD: Appeal allowed. The trial judge erred in excluding the screenshot evidence. The judge effectively required direct evidence from a witness who could testify to having seen the posts on the respondent’s Facebook to authenticate the Facebook posts. She committed an error in principle by not considering whether the circumstantial evidence which the Crown submitted could authenticate the Facebook posts. There was no requirement that authentication evidence be restricted to direct evidence. Authentication of electronic evidence did not prove that the electronic evidence was what it appeared to be. In this case the circumstantial evidence supporting authentication was considerable. This circumstantial evidence was relevant and probative of some elements of the offence with which the respondent was charged and supported a finding that the Facebook posts were what they purported to be. System integrity for the purposes of admissibility of the screenshots tendered by the officer to whom the postings were e-mailed was also established.

R. v. Martin, [2021] N.J. No. 1, Newfoundland and Labrador Court of Appeal, L.R. Hoegg, W.H. Goodridge and G.D. Butler JJ.A., January 4, 2021. Digest No. TLD-March12021006