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The Court of Appeal for Ontario Confirms Low Bar for Authenticating Electronic Evidence at Trial

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Nick Whitfield, Neuberger & Partners LLP

In the recent decision R v MSA, 2024 ONCA 477, the Court of Appeal for Ontario confirmed the low bar for authenticating electronic evidence under section 31.2 of the Canada Evidence Act.

The original trial concerned multiple allegations of spousal assault. The Crown had sought to admit audio recordings of alleged domestic abuse allegations, including assault, but the appellant claimed the audio files had been altered, noting discrepancies between the dates the complainant stated she had made the recordings against time stamps in the metadata. The trial judge accepted that the discrepancies arose when the complainant transferred the recordings between her phone and computer. The appellant challenged that finding.

This was the first time the Court of Appeal had addressed a trial judge’s compliance with the “best evidence rule” under section 31.2 of the Canada Evidence Act. Under sections 31.1–31.2, any person seeking to admit an electronic document as evidence in court bears the burden of proving its authenticity. The Appellant claimed that the trial judge erred in the treatment of electronic evidence, and that the complainant had not shown the audio recordings were what they purported to be.

The Court of Appeal disagreed. The best evidence rule presumes the integrity of electronic documents and sets a low bar for admissibility. This low bar will be met where a party seeking to adduce evidence testifies to its accuracy – for instance, that audio recordings accurately reflect what was spoken and heard, or text messages what was said and meant. Where in this case the best evidence rule benefited the complainant, it will be of assistance to any party, Crown or defendant, seeking to admit electronic evidence at trial.

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