Digital evidence such as text messages, e-mails, and social media posts are often relevant to cases involving technology-facilitated gender-based violence (TFGBV). All documentary evidence (including physical paper records and digital evidence) must be authenticated to be admitted and considered by a judge or jury in deciding a case.

Authentication requires the party submitting a piece of evidence to demonstrate that the evidence is what it claims to be.1 This will generally be done by having a witness testify about what the document is and how it came into existence.

This document is intended to help guide you through the process of authenticating digital evidence in court. The rules about authentication and your role in the court process will vary somewhat depending on whether your legal matter is civil or criminal, and what province or territory the case is being heard in. The next section details some key differences in authenticating documents in criminal courts vs. civil courts. For more information on the differences between criminal and civil trial processes in the context of technology-facilitated violence, see Legal Protections for TFGBV: What Laws Apply to You?

Authenticating Documents: Criminal Cases vs. Civil Cases

Criminal Cases

If you are involved in a criminal trial as a victim of TFGBV, you will not be considered a party to the legal proceeding. In criminal cases, the dispute is technically between the Crown, which represents the Canadian public, and the accused person, who may be represented by defence counsel or may represent themselves. If you are the person harmed by the accused’s technology-facilitated violence, you are considered to be a “complainant,” and are not entitled to have a lawyer appear for you or to run your case.

Your role as a complainant will be to tell the police, Crown counsel, and the court what you experienced and to give your evidence, digital and otherwise, to the police. On some occasions, you will provide evidence to the Crown counsel so that it can be used at trial. Crown counsel will determine what evidence and information is legally relevant and has to be turned over to the accused person and their lawyer. It is also the role of the Crown counsel to submit evidence about the case to the court. You will not be able to control what evidence or information the judge receives, what arguments are made about whether it should be accepted, whether it is accepted, or how it is treated.

If you are entering the criminal law system as an accused person (if you have been formally charged with a criminal offence), you may have to represent yourself if you do not qualify for legal aid and are unable to afford a lawyer. You would have to enter evidence into the court record yourself. This document can also assist accused women to understand how they would be expected to admit evidence at trial.

The rules for authenticating digital evidence in criminal court are found in the Canada Evidence Act. The Canada Evidence Act applies to all criminal cases and includes important rules about introducing digital evidence to the court. However, the Canada Evidence Act does not provide complete information about how to introduce evidence to a court. This document is intended to fill some of these gaps.

The Canada Evidence Act defines an “electronic document” as:

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, print out or other output of that data.2

This definition is very broad and includes essentially all information that is stored digitally, such as text messages, voice memos, emails, videos, photos, direct messages (DMs), and social media posts. Any information saved on your cellphone or computer will likely fall within this definition. Anything that is stored digitally which can be read, heard, or seen in court may be considered an electronic document. It is not limited to what someone might commonly think of as a “document,” such as a PDF or Word document.

When the Crown or defence brings electronic evidence to the court, it will need to be in a format that the court can see and use. This will likely require you or the police to take screenshots or print emails so that a paper record can be admitted to the court. If you only bring your phone or computer in to show the police or court the evidence on it, it may not be accepted in that form, or they may be required to take your phone or computer for some time to access the evidence. If you print out an email or a screenshot of a text, it will generally still be considered “digital evidence” even though it is now on paper. For more information on preparing digital evidence for court, see Preserving and Storing Evidence of TFGBV: Best Practices and Submitting Evidence in Court.

The Canada Evidence Act requires that all electronic documents be authenticated and satisfy a version of the “best evidence rule.”3 These requirements have been interpreted by the courts as being essentially the same as the “common law” requirements discussed later in this document. As such, the information about authentication and the best evidence rule discussed later in this document will generally apply in the context of criminal proceedings.

If both Crown and defence counsel agree that a document is authentic, there will not need to be a separate hearing to determine whether a document has been authenticated. In all other cases, there will be a voir dire, which is a separate hearing during or before a trial, where the judge will need to determine whether an electronic document has been properly authenticated and may be admitted as evidence.

Civil or Family Cases

In civil cases, your role as a victim of technology-facilitated violence will be very different than in the criminal justice process. Generally, you (the “plaintiff”) will be suing the perpetrator (the “defendant”) for the harm they have caused you. You may be seeking a protection order preventing the perpetrator from contacting you, or you may be trying to introduce digital evidence in a family law proceeding, such as a custody proceeding. In all of these circumstances, you can be represented by a lawyer or you can represent yourself. If you have a lawyer, you will work with them to ensure you have collected all relevant digital evidence and they will prepare or help you prepare the evidence to present in court.

If you do not have a lawyer, you will be responsible for preparing and presenting your digital evidence in court (see Submitting Evidence in Court). It will be your responsibility to authenticate all of your documentary evidence, including digital evidence. This document is intended to help you understand how to do this. In civil cases, you only need to authenticate your evidence if the other side raises the possibility that it is not authentic. However, since authenticating evidence is relatively simple (as will be explored below), it is best practice to always authenticate any documentary (including digital) evidence to ensure there are no disputes about the document's authenticity later in the trial or on appeal.

Depending on where the trial is taking place, the rules for authenticating digital evidence will either be set out in a particular piece of legislation (a written law) or will be governed by the “common law,” which is based on court decisions and legal precedent. The following provinces and territories have legislation governing the authentication of digital evidence in civil trials:

The following provinces' and territories’ rules about authenticating electronic documents are governed by the common law:

  • Yukon
  • British Columbia
  • Quebec
  • Newfoundland and Labrador
  • Prince Edward Island
  • New Brunswick

The remainder of this document describes general rules and procedures for authenticating digital evidence based on the common law. The Canada Evidence Act (referred to above), and provincial evidence legislation have been interpreted as being generally consistent with the common law, so even if your trial will be taking place in one of the jurisdictions that has its own evidence legislation, the general information in this guide should still be helpful. However, you should always consult the relevant legislation (linked to above) and, if possible, consult with a lawyer to ensure you properly understand the law. For a list of legal resources in your area, see Legal and Victim Service Supports and Resources.

Authenticating Documents: General Information

While electronic documents must generally be authenticated before they are admitted as evidence, the threshold for authentication is low. This means it should not be difficult to authenticate your electronic evidence. As set out above, all that you are generally required to provide is some evidence that the document is what you claim it is. For example, if you want to rely on a printout of screenshots of an Instagram direct message, you just need to provide some evidence that demonstrates that the document actually represents a screenshot of an Instagram conversation.

Technically, you do not need to prove anything more than this – for example, you do not need to prove that the conversation was between you and a specific person.4 However, as the law is not completely clear in this area,5 it is always best practice to put forward as much information about the digital evidence, how it was created, and why you think it represents what you claim it does, as possible. In the case of an Instagram DM, you would want to collect and include the following information:

  • The date and time the conversation took place
  • The date and time you took the screenshot
  • Screenshots of the photo and handle/name of the person who sent the message
  • A screenshot of the Instagram profile of the person who sent you the message
  • Any other relevant Instagram DM conversations with this same person

You will also want to explain why you think the messages came from a specific person through your testimony. This can include telling the court whether you have spoken with this person through this account before, whether you can identify who they are in real life, whether you are familiar with their account, and whether you know how to use that particular social media app or website.6

Although the threshold for authentication is low, there have been some cases where electronic documents were found to have been not properly authenticated because it was unclear if they had been tampered with and, as a result, the documents were rejected. For this reason, you should never alter electronic evidence that you have collected. Further, recent case law indicates that if digital evidence comes from a messaging or other application that is not commonly known (for example, not Facebook, email, Twitter, etc.), there may be a higher standard for having that evidence authenticated.7 If you are relying on evidence from a relatively unknown mobile application, you should consider gathering information about how the application operates to ensure authentication.

Best Evidence Rule

The “best evidence rule” is a rule of evidence that operates alongside authentication concerning documentary evidence. This rule developed before the invention of computers, when “document” referred to a physical document such as a written contract or a photograph. The best evidence rule generally required the original document, such as the original signed contract or a photograph printed from the film of a camera, be provided to the court, rather than a copy. This rule was created because it was easier to see if an original record had been altered or changed. If the original was not available, the party trying to admit the evidence would have to explain why they were using a copy.

As the world has become more digital, the concept of an “original” document is less relevant. Exact copies of the same document now often exist in multiple places at the same time. If someone emails a photo to another person, both people will have an identical copy of the same photo saved in each of their individual email folders. There is no single, original hard copy. As a result, the courts have had to change some of the original rules of evidence to address these differences between digital and non-digital documents.

Because there is usually no true, single “original” document when it comes to most digital evidence, the courts will instead want to know if the system the file was saved on was functioning normally at the time the evidence was created or saved.8 When digital evidence, such as a screenshot from someone’s social media page, is submitted as evidence, the court wants to know whether the record system (e.g. the phone it was saved on, or the social media page it was displayed on) was reliable, meaning it would not have altered the electronic document and the information would not have been stored inaccurately. As a result, you should provide the court with evidence about the reliability of the system on which the digital evidence was stored.

You or another witness will likely have to explain how the system works (for example, you may need to tell the court the basics about a social media platform, such as how to sign in to Facebook, send messages to friends, delete messages, or comment on posts) and describe why you believe the platform was working normally when the evidence was created (for example, nothing seemed out of the ordinary when you signed in or checked your messages). You should also be prepared to explain why you believe your phone, computer, or other device was functioning normally when the evidence was saved (usually by testifying that you hadn’t noticed anything strange about how the computer was functioning).

In some circumstances, the courts may presume the integrity of a system or platform, meaning specific evidence that it was functioning properly won’t be required. These circumstances include:

  • When the document was recorded or stored by someone “adverse to the party seeking to introduce it.” For example, if you are attempting to enter a photograph you located on the opposing party’s computer, the integrity of the computer system will be presumed unless the opposing party can prove otherwise;
  • When the document was made using a routine system by someone who isn’t a party to the case and the person seeking to admit the document did not store the document themselves. For example, a report generated by Instagram and sent directly to your lawyer.


All documentary evidence, including electronic evidence, must be “introduced” through a witness giving testimony or through an affidavit. An affidavit is a written statement that is sworn under oath and then submitted to the court. It is used in place of live testimony before a judge or jury. Affidavits are generally only considered acceptable evidence in civil court, and only for applications (rather than trials), although this may vary from province to province. While electronic evidence may be authenticated through oral testimony or affidavit, the remainder of this document will discuss authenticating electronic evidence through live witness testimony. The general principles and considerations discussed below apply to both oral testimony and affidavits, the difference being that in affidavits the relevant information will be provided to the court in writing. For information on introducing evidence generally, see Submitting Evidence in Court.

As discussed above, authentication requires that a witness tell the court why a document is what they (or the Crown) claim it is. This document discusses you as the witness authenticating digital evidence, but the same considerations apply to all witnesses who are authenticating digital evidence. It is best that whoever “created” the digital document (for example, the person who took the screenshot of the Instagram DM) be the person to testify about and authenticate the document, though this is not a strict requirement. What is most important is that the witness testifying about the document has sufficient relevant knowledge of the event captured in the document and how the document (the screenshot or printout) was created.

If you did not create the digital evidence yourself, you can still provide evidence of its authenticity in certain circumstances.9 In R v Hirsh,10 a woman wanted to show a screenshot of someone’s Facebook profile as evidence at the trial. She was not able to take a screenshot of the profile herself, because the person had blocked her on Facebook. However, her friend was still Facebook friends with the account she wanted to access, so her friend took a screenshot of the account. It was acknowledged during trial that the witness had no way of knowing whether the screenshots had been edited because she did not take them herself. The court also acknowledged that it would have been preferable for the friend who took the screenshots to testify to their authenticity. However, the court still accepted the witness’s testimony because she was familiar with the owner of the Facebook profile, she had access to the profile before she was blocked, and she was able to recognize the user’s style of writing.

Authenticity does not necessarily require a third-party (i.e. someone other than you or the opposing party) to testify and authenticate digital evidence. For example, if you are relying on Facebook screenshots, you do not need a representative from Facebook to testify in court about how Facebook works. It is generally appropriate for you to authenticate your own evidence if you can truthfully testify to its authenticity under oath.11

Even though, in some circumstances, authentication is not necessary unless questions about authenticity are raised by the other party, it is always a good idea to authenticate your electronic documents in the manner described below.

The process of authenticating evidence is quite simple:

  1. Tell the court exactly what your evidence is.
    1. Examples: “This is a photocopy of my receipt for a purchase from Walmart on X date.” And “This is a printout of the messages I received from my ex-husband over Instagram.”
    2. You will say this to the court through either oral testimony or an affidavit.
    3. If the evidence is unusual in any way, mention this in your description of the evidence.
      1. Example: If the evidence has been edited, such as deleting certain text messages from a conversation, you should say this to the court. You should not present an edited version of a conversation to the court without explaining how and why you edited it and the differences between the original and the edited version.
  2. If you are presenting digital evidence, you should be able to explain how the program or application you obtained the evidence from functions.
    1. Example: If you want to submit a Snapchat video, you should be able to tell the court how Snapchat generally works. You could say “Snapchat is a messaging application where users send each other pictures or videos that then disappear shortly after the recipient has viewed them.”
    2. This is especially important if it is an app or program that may not be well known.
  3. If the evidence is an original document (such as a store receipt, diary entry, signed contract, etc.), you should say so. If the document is a copy of such a document, you should explain why you are not bringing the original document to court. It is always best to provide the court with an original document, if possible.
  4. If you used an application to organize or store the evidence, you should explain this to the court.
    1. Example: Sometimes it is easier to use a third-party application to save large volumes of text messages than trying to save them all using the standard screenshot function on your phone. You should be able to explain to the court how any such third-party application functions.
  5. If the evidence was created or saved by another person, you or the Crown should try to have that person testify about how the document was created.
    1. Example: If a friend took a screenshot of something on the opposing party’s Facebook page and then sent it to you, that friend, not you, should testify about the circumstances of taking that screenshot.
  6. Do not misrepresent your evidence.
    1. Do not say that your evidence is something that it’s not. If you do not know the answer to a question asked or are missing information, it is better to just say that than to try to fill in the gaps. Do not state anything that you do not know.
  7. Tell the court how you know that the evidence accurately represents what you say it represents.
    1. Examples: “This is a photocopy of my receipt for a purchase from Walmart on X date. I made the photocopy from the receipt I received after completing my purchase. I checked the photocopy against the original and the copy accurately reflects the original receipt.” And “This is a printout of the messages I received from my ex-husband over Instagram. I took a screenshot of the messages I received on my phone and then I printed out the screenshot. I checked the printout against the original messages I received, and the printout accurately reflects the messages I received.”

Summary: To authenticate a document, the witness should tell the court what the document is by describing when the document was created, who created it, whether it is an original or whether any changes have been made to it, and how it is relevant to an important fact or a legal issue in the case.

Take these steps if you are the witness introducing a document:

  1. Begin by giving the court oral evidence on the events of your case.
    1. Example: “On June 1, 2022, I was sitting at home when I heard my phone buzz. I checked my phone and saw a message from my ex-husband, Paul.”
  2. When you reach the point in your testimony where the document comes up, you can hand over a copy of the document to the judge and the other party. If you organized all of your documents in a binder, just identify which tab to turn to in the binder.
    1. Example: “Please turn to Tab 7 of the plaintiff’s documents ”
  3. Tell the court what the document is.
    1. Example: “This is a printed version of a screenshot of my text message conversation with Paul from June 1, 2022."
  4. Give the court more details about the document. These details may include:
    1. When? When was the screenshot taken? When were the text messages sent? When did you receive the letter?
      1. Example: “As captured in the screenshot, I received the message from Paul at 11:13 p.m. on June 1, 2022. I took a screenshot the next morning, June 2, 2022, at 8:45 a.m. and saved a copy in the “Paul” folder on my iPhone.”
    2. Who? Who took the photo? Who sent you the messages? Who took the screenshots? Who sent you the letter? Who is in the photos?
      1. Example: “I know it was Paul who sent me the message because the message was from the number I had saved for him in my phone, which he had consistently messaged me from throughout our marriage and afterwards. At Tab 8 of the plaintiff's documents, you can see a screenshot of his contact information that I took and saved on my phone on June 2, 2022.”
    3. Accurate? Were there any changes made to the evidence? For instance, have messages been deleted from the conversation? Have you cropped the photo? What programs did you use to alter the document? Do the changes to the document make the document less relevant?
      1. Example: “This screenshot contains our entire conversation from the evening of June 1, 2022. You can see his previous message to me was on April 3, 2022, arranging daycare pickup for our child. I never received any communications from Paul after June 1, 2022.
    4. Reliable? Is the evidence reliable? Is the photo a realistic depiction of what happened? Did printing out the photo cause it to become too blurry?
      1. Example: “This screenshot accurately depicts what was captured on my iPhone during the morning of June 2, 2022, and accurately reflects my text message conversation with Paul on the night of June 1, 2022.”
    5. Relevant? How is the document relevant? Sometimes it is obvious that the document is relevant, so you do not have to explain. For instance, if your case is about obtaining a protection order against your ex-husband, threatening text messages would be relevant.
      1. Example: “The messages from Paul on the evening of June 1, 2022, contain clear threats to my safety.”
  5. Ask the judge, “May I mark this document/photo as the next exhibit?” If the judge agrees, then the document is marked as an exhibit. This means that the document has been accepted by the court.
  6. Once the document has been marked as an exhibit, you should point out things about the document that stand out.
    1. Example: “Paul sent me the first message, ‘I am going to kill you,’ 5 hours after we saw each other at the grocery store and he saw me with my new boyfriend. This message caused me to feel very frightened, which is why I immediately responded ‘You are scaring me.’”
  7. Once you finish going over the document, you can continue giving the rest of your oral evidence if you still have more evidence to present.
    1. Example: “The next day, on June 2, 2022, I saw Paul’s car drive by my house very slowly...”
  8. The marked exhibit can be used when you make your closing argument as to why you have proven your case with facts and that the judge should decide in your favour. You can refer back to the document as evidence to prove your case.
    1. Example: “As demonstrated by the text message conversation marked as Exhibit A, Paul used extremely threatening language in his messages to me, which caused me to fear for my safety. Because of this and the other threatening behaviours on June 1 and June 2, you should grant my application for an emergency protection order.”

If you are not the witness introducing the document but another witness is doing so, here are the steps to take:

  1. The witness will be sitting on the witness stand. Unless you have a lawyer, you will have to ask the witness questions about the document.
  2. Begin the direct examination of your witness.
  3. When you reach the point in your witness’s testimony where the document comes up, you can hand over the document to the witness. You should also give the judge and the other party a copy of the document. If you organized all of your documents in a binder, just identify which tab to turn to in the binder.
  4. Ask the witness what the document is.
  5. Ask more questions regarding the details of the document. These details may include:
    1. When? When was the photo taken? When were the text messages sent? When did you receive the letter?
    2. Who? Who took the photo? Who sent you the messages? Who took the screenshots? Who sent you the letter? Who is in the photos?
    3. Accurate? Were there any changes made to the evidence? For instance, have messages been deleted from the conversation? Have you cropped the photo? What programs did you use to alter the document? Do the changes to the document make the document misleading?
    4. Reliable? Is the evidence reliable? Is the photo a realistic depiction of what happened? Did printing out the photo cause it to become too blurry?
    5. Relevant? How is the evidence relevant? Sometimes it is obvious if the document is relevant, so you do not have to explain. For instance, if your case is about obtaining a protection order against your ex-husband, threatening text messages would be relevant.
  6. Ask the judge, “May I mark this document/photo as the next exhibit?” If the judge agrees, then the document is marked as an exhibit. This means that the document has been accepted by the court.
  7. Once the document has been marked as an exhibit, you can ask the witness more questions about the document. For instance, your mother is the witness and the document that she introduced is a text message conversation where your ex-husband threatened her over 20 times in a week. You may want to point out that number to the court. You could do this by asking the witness: “How many text messages do you usually receive from X in a week?” and “What is the nature of these text messages?”
  8. Once you finish going over the document, you can continue the direct examination of your witness if you still have more questions to ask them.
  9. The marked exhibit can be used when you summarize your argument.

Incomplete or Edited Digital Documents May Still Be Authenticated

The court does not require you to show that your digital documents are identical to the original digital files. For example, on some social media platforms, it is possible to delete sent messages. If an abuser has deleted messages they sent you from your chat, it will be impossible to take screenshots of the “original” conversation, because part of it has been deleted. However, you can still screenshot the remaining conversation that has not been deleted. In this case, you cannot claim that the screenshot represents the original conversation because some portion has been deleted. However, you can say that the screenshot accurately represents the remaining portions of the original conversation.

A digital document does not need to be an exact copy of the original digital file; it can be a copy of a modified version of the original file. However, modification of a document should be avoided whenever possible. What is important is that the document is an accurate representation of the information that it claims to show. Thus, you should always carefully review the document that you plan to use to clearly and accurately testify that the document is what you say it is. You may have to explain or provide a reason if your digital documents look revised or altered.

Examples of situations where a digital document may require more explanation include:

  • If the document does not include contextual information, such as the time and date of a message.
  • If the conversation being captured between two people does not flow logically (for example, if it is obvious that some of the texts have been removed from the document).
  • If the document is inconsistent with other documents that are being presented as evidence.

In R v Aslami,12 the Ontario Court of Appeal found that the trial judge failed to consider certain issues with the reliability of messages sent via an application called ”TextNow.” The Court noted that there was nothing in the content of the messages themselves that proved they had been written by the accused, and there was no expert testimony about how the TextNow application functioned. The Court cautioned that trial judges need to be very careful in dealing with certain forms of electronic evidence given the potential for this evidence to be manipulated, and found that the Crown should have called an expert to address the reliability of the evidence.

Somani v Jilani13 is a case where suspicious digital documents were not authenticated. In this case, Mr. Somani attempted to present as evidence a text message printout. The printout in question showed a single text message from Mr. Somani. There was no response to the text from Ms. Jilani. Ms. Jilani argued that she would have responded to the message had she actually received it. This piece of Mr. Somani’s evidence was unusual because all other printouts of conversations between Mr. Somani and Ms. Jilani consisted of large volumes of text – not just a single text. Lastly, Ms. Jilani testified that Mr. Somani was an expert with computers and would likely know how to produce a falsified printout of a text message. The judge found that the printout was suspicious and was not satisfied that it was authentic.

You should try to gather your evidence comprehensively and consistently. This could include preserving the whole text conversation rather than just one or two texts that you think are relevant as it is important to present the entire context of a conversation to the court. Establishing a consistent manner of capturing screenshots and gathering documentation will be helpful to show the court that you have a process you follow in your evidence collection. This can aid in the authentication of your documents before a court.

Anonymous Messages Can Be Authenticated

It is not necessary, during the authentication step, to identify the author of a digital message.14Women are often harassed by anonymous or fake profiles. Evidence from an anonymous or fake profile is still admissible in court. At the authentication stage, you only need to show that the screenshots are what you say they are: an accurate representation of the harassing messages you received from the anonymous or fake account.

Forensic digital evidence, like an IP address, that links the fake social media account to an actual person’s Internet account is not necessary to establish authenticity. Forensic digital analysis may be more important to other elements of your court matter, such as identifying the source to issue and serve a court order.

Even though the authentication stage does not require proof of identity, it can be important to a victim’s case to identify the person who has been harassing them anonymously. While you may not be able to hire an IT expert to conduct a forensic analysis, you may be able to prove through circumstantial evidence that the anonymous messages came from a specific person. This evidence could include other messages sent by that person from a different account clearly associated with them (such as their primary phone number or email address), messages containing references to events or facts only that person would know, images of that person posted on the anonymous account’s social media profile, etc. It is important to save digital evidence because it can be helpful to prove the identity of an anonymous person. Saved texts or emails from the anonymous account can be compared against the other anonymous messages to show similarities in language or knowledge of private information. These similarities could suggest that the anonymous poster is a specific individual, such as an intimate partner or family member. Similarities between these messages could demonstrate that the same person sent them.

Documents Downloaded from Third-Party Applications

Care should also be taken if digital evidence is being processed through a third-party app, such as an app that backs up or makes recordings of your messages.

In Sylvestre v Sylvestre,15 a printout of text messages using a third-party app was not authenticated. In that case, the witness used the ”Decipher Text” computer app and testified that printouts presented as evidence contained messages transferred from her phone to her computer using this app. She did not explain how the application worked, and as such there was a gap in explaining how the messages she received on her phone were reflected in the computer printouts. Had she explained how the app converted text messages into printouts, the evidence might have been authenticated. Similarly, if she had taken screenshots of the messages rather than using Decipher Text, the evidence likely would have been authenticated.

Based on Sylvestre, screenshots are preferable to the use of third-party apps. A screenshot printout is a depiction of what one would see on the screen of a smartphone. For more information on preserving digital evidence using screenshots, see: Preserving Digital Evidence via Screenshot. There is no need to provide technical evidence showing how taking a screenshot works, as this is generally known by judges and juries.

In certain circumstances, it may still be helpful to collect your digital evidence through a third-party app. In cases where there are thousands of text messages or emails, it could be helpful to use a third-party app to download or organize these messages rather than screenshotting them one by one. If using a third-party app, authentication is not overly complex. To the best of your ability, you need to explain to the court how the application works in a way that is understandable to someone with no prior knowledge of the application. You can testify that the printouts from the application accurately represent the text messages that you received on your phone because you have compared the printouts to the text messages and can confirm their accuracy. This type of testimony may be sufficient for authentication.

Circumstantial Evidence

Circumstantial evidence is evidence about the circumstances surrounding an event that may help prove that an event happened. Circumstantial evidence may be used to determine the authenticity of a document.16Circumstantial evidence can be helpful when you do not have direct proof that an event occurred. An example could include another person having your phone all day, that person being the only other person who knows your passwords (such as an intimate partner), and a nude photo of you being posted on your Instagram account that day. The fact that he was the only person to have your phone and knew your passwords is circumstantial evidence that it was he who posted the photo. Circumstantial evidence can be challenged by the other party. They can provide testimony of other circumstances or events to explain the contested evidence.

Circumstantial evidence that can be used to authenticate messages has included:

  • The use of a nickname in the message that only the accused called the complainant17
  • Consistency between the contents of messages and events that were going on at the relevant time18
  • Testimony of the complainant or another witness about how the document was created19
  • Evidence that the complainant received previous communications from the account20
  • The messages appearing to be from an account associated with the accused’s name21

How to Challenge the Authenticity of the Other Party’s Documents

If you suspect that the other party’s documents have been edited or are inauthentic, you can dispute the authenticity of their documents. However, as previously noted, the burden to establish authenticity is very low. The other side only needs to tender some evidence that the document is what they say it is. This could be as simple as a statement from the opposing party that the printout or file saved on a USB drive looks like a copy of a message they received via e-mail or on social media. Concerns about whether the document has been fabricated or falsified in some way should technically be dealt with later in the trial – a document may still be considered legally “authentic” even if it has been forged or altered.

If the other party’s testimony does not sufficiently explain the context of the digital document or how they know that the document is authentic, you can state they have not met the authenticity standard. If you believe the documents have been edited or modified, you should raise this. While this may not be sufficient to have the documents excluded because they are inauthentic, in some cases it may be. In other cases, this will be relevant to the weight the judge ultimately gives these documents as evidence (see below). It may be helpful to submit your own unedited version of text messages, emails, or other social media posts to support the fact that the other party’s documents have been altered. Signs of editing may include:

  • Incorrect or missing dates and times
  • Conversations that do not flow logically
  • Documents that are inconsistent with other related documents
  • Screenshots that show gaps in the conversation

Circumstantial evidence might be useful to indirectly show that the other party’s documents are not authentic. For example, if the other party tries to submit text message screenshots that are timestamped, evidence that they were at work or otherwise unavailable during that time could be used as circumstantial evidence. This evidence would show that the other party was doing something else during the time that the messages were allegedly sent. This could help the court infer that the text message screenshots are inauthentic because the other party was working and could not have sent them.

If the other party used a third-party application to download or organize their documents, or they are attempting to rely on evidence captured using little-known messaging or social media applications, you can argue that the evidence has not been authenticated unless the other party has put forward expert evidence or very clearly explained how these platforms operate.

Authentication vs. Weight

It is important to remember that even if evidence is admitted to the court, this doesn’t mean that the judge or jury will believe all of the information in the electronic document. After the evidence is authenticated and admitted, the judge or jury will still need to decide how much “weight” to give the evidence. At the end of the trial, they will decide whether the evidence is trustworthy or relevant in light of all of the other evidence when making their final determination about which party should succeed in their legal claim. Even if doubts about who authored the messages, or whether the evidence has been tampered with, were not enough to have the evidence ruled inadmissible, such claims may lead to the judge or jury deciding not to give the evidence much weight, or rejecting it entirely.

Technology-Facilitated Gender-Based Violence (TFGBV) is part of a continuum of violence that can be both online and in-person. If you or someone you know is experiencing TFGBV, you are not alone. You can use to find a shelter/transition house near you or call/text the Kids Help Phone to discuss options and create a safety plan. You don’t need to stay in a shelter to access free, confidential services and support.

We gratefully acknowledge Moira Aikenhead for providing expertise to update this toolkit and Sherry Xu, JD Candidate, and Peter A. Allard School of Law, UBC, with support from the Pro Bono Students Canada Organization, for the creation of this document. We thank Suzie Dunn of the eQuality Project at the University of Ottawa, Kim Hawkins of Rise Women’s Legal Centre and Magal Huberman of Pietrow Law Group for their guidance.

Adapted with permission from BCSTH’s Technology Safety project, based on their resource Authentication of Digital Evidence for Protection Order Matters in BC Family Court or BC Civil Courts and Admitting Digital Evidence in Criminal Court.

  1. R v Martin, 2021 NLCA 1.
  2. Section 31.8.
  3. Sections 31.1, 31.2.
  4. R v Hirsch, 2017 SKCA 14.5
  5. While technically it does not appear that you need to prove who was actually involved in an electronic conversation in order to authenticate that evidence, courts have sometimes seemed to conflate the concepts of authorship and authentication. For more information,see Suzie Dunn & Moira Aikenhead, “On the Internet, Nobody Knows You are a Dog: Contested Authorship of Digital Evidence in Cases of Gender-Based Violence” (2022) 19 CJLT 371.
  6. R v Hirsch, 2017SKCA 14 at para 19.
  7. R v Aslami, 2021 ONCA 249.
  8. R v Ball, 2019 BCCA 32 at para 72-73.
  9. Zhang v Sun,2016 BCSC 1418.
  10. 2017 SKCA 14.
  11. Ainger v Posendorf, 2019 ONSC 2220.
  12. R v Aslami, 2021 ONCA 249
  13. 2018 BCSC 1331.
  14. R v Hirsch, 2017 SKCA 14.
  15. 2018 SKQB 105.
  16. British Columbia (Securities Commission) v Alexander,2013 BCCA 111. 
  17. R v Soh, 2014 NBQB 20.
  18. R v CB, 2019 ONCA 380; R v Durocher, 2019 SKCA 97.
  19. R v Himes, 2016 ONSC 249; R v Phagura, 2018 BCSC 2541; Soh.
  20. R v Durocher, 2019 SKCA 97; Phagura, 2018 BCSC 2541; Soh
  21. R v Hirsch, 2017 SKCA 14; R v CB, 2019 ONCA 380; Durocher

Safety Check!

If you think someone is monitoring your devices, visit this website from a computer, tablet, or smartphone that isn’t being monitored.

EXIT NOW from this website and delete it from your browser history.

Exit Site