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Joseph Neuberger and Michael Bury, Neuberger & Partners LLP
With the widespread use of smartphones and social media, our courts have seen a significant increase in the use of digital evidence at criminal trials. The authentication of such evidence has become a new battleground, particularly in sexual assault cases and domestic related assault cases arising from high-conflict divorce. The traditional rules of evidence have had to contend with technologies that can easily modify or manipulate so-called “originals”.
Yet despite the potential for doctoring, recent appellate decisions from the Ontario Court of Appeal have confirmed the low threshold for authenticating digital evidence.
The Court in R. v. S.M., 2025 ONCA 18 confirmed that to authenticate an electronic document for the purposes of admission, s. 31.1 of the Canada Evidence Act, R.S.C. 1985, c. C-5 requires only that there be “evidence capable of supporting a finding that the electronic document is that which it is purported to be.” It does not require this evidence to be provided by an independent witness. The complainant’s testimony in this case was sufficient to authenticate screenshots she had taken of a Snapchat photo.
Similarly, the Court in R. v. S.P., 2025 ONCA 601 found that a complainant’s evidence that a screenshot accurately showed her text message with the appellant was sufficient to meet the “low” authentication threshold. What use should be made of the screenshot, however, was a matter for the jury to decide.
The Court in R. v. S.P. also rejected the Appellant’s argument that the trial judge had failed to give the jury adequate limiting instructions about the screenshot’s authenticity and reliability. The Appellant argued the trial judge should have instructed the jury that because the probative value of the screenshot depended on the complainant’s own testimony about what it showed, it was not capable of confirming her own evidence about the alleged assault. The Court of Appeal was, however, satisfied that the jury instructions were adequate and that the jury would have understood that they had to consider anything that might call into question whether the authenticity of the screenshot.
These judgements confirm the low threshold for authentication. The takeaway is that defence counsel must be vigilant in challenging all anticipated digital evidence. Critical steps include disclosure requests for the actual digital file instead of just printouts, as well as requesting all associated “metadata”, the hidden file information that provides details of the time, date, and place of a digital file’s creation, its means of creation, and its data source.
