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Harnessing digital evidence in Court in the digital age, more and more criminal cases, especially those involving allegations of sexual assault or domestic violence, hinge on text messages, voice memos, and video clips. These pieces of digital evidence can be incredibly powerful in court, but a key question often arises: can partial recordings be admitted as reliable evidence?
The Ontario Court of Appeal recently addressed this issue in R. v. Whalen, 2025 ONCA 359. In this case, the trial judge admitted a partial audio recording provided by the complainant. It captured a conversation between the accused and the complainant, but the recording began midway through their exchange. The defence argued that the recording lacked proper context and was therefore misleading. However, the Court of Appeal found that partial recordings can be admissible if they’re authenticated and relevant and if the court is satisfied that they haven’t been tampered with.
This decision is important for both complainants and accused persons, because it affirms that incomplete does not mean inadmissible. Courts will assess whether a recording fairly represents what occurred, even if it doesn’t capture the entire conversation.
Still, caution is warranted. While partial recordings may be allowed, they can also raise concerns about fairness. For example, if a clip starts at a moment of high tension but doesn’t show what led up to it, it could paint a distorted picture. That’s why it’s critical for criminal defence lawyers to carefully review the metadata (such as timestamps and file properties), request the full unedited version when available, and challenge any material that appears misleading.
In R. v. Whalen, 2025 ONCA 359, the Court emphasized that the defence counsel had the opportunity to cross-examine the complainant about the recording and to raise issues about its reliability. That opportunity to test the evidence through cross-examination and argument is central to the fairness of the trial.
If you’re accused of a crime, and a partial recording is being used against you, it’s not enough to object to its incompleteness. You need a legal team that understands how to scrutinize digital evidence: how it was captured, whether it was edited, and what the missing parts might reveal. In some cases, the absence of certain content can be just as powerful as what’s included.
On the flip side, recordings can be a valuable tool for the defence, particularly in false allegation cases. A calm, respectful message from the accused or a contradictory statement by the complainant can cast significant doubt on the prosecution’s case. Even a brief voice note or video clip may help expose inconsistencies.
At Neuberger & Partners, we are well-versed in the evolving rules of digital evidence. We know how to use partial recordings strategically and challenge those used unfairly by the Crown. When your future is at stake, every second of every clip matters.
Having been falsely accused and charged of a crime based on digital evidence? Let us examine it before it defines your case. Call Neuberger & Partners at 416-364-3111 to schedule a confidential consultation.
