R v Martin: Shedding Light on Screenshots as Electronic Evidence
You are scrolling on your phone, making your daily social media rounds. You see something you would like to share with a friend, so you take a screenshot. This has become a habit in our social media consumption, as constant as “likes” and “shares.” However, imagine that those screenshots were to be used as evidence in a criminal trial. What is the threshold of authenticity for screenshots tendered as evidence? If the screenshots are submitted by someone who cannot attest to their authenticity, are they still admissible as evidence in a trial?
It is this novel conjoining of social media and criminal law that the Newfoundland Court of Appeal (“NLCA”) grapples with in the case of R v Martin, 2021 NLCA 1 [Martin], and that the Supreme Court (“SCC”) will likely shed light on when the accused seeks leave to appeal.
Facts and Trial Decision
In March of 2018, a complaint of a domestic disturbance was made regarding Mr. Martin’s residence. Constables Park and Kirby arrived at the residence to find that two other officers had already visited there. They entered the home where Mr. Martin lived with his girlfriend, but determined that no further investigation into the matter was needed (para 5).
The following night, the police received an anonymous tip that several of Mr. Martin’s recent Facebook posts indicated his intentions to harm the police. Two different officers, Constables Smith and Walsh, paid Mr. Martin’s home another visit. Mr. Martin was upset that the police had arrived again, complaining that they had already visited for no reason the previous night and told them to get off his property (para 6). Constable Wash tried to access Mr. Martin’s Facebook page at the station. He contacted the source of the anonymous tip when he was unable to do so and asked that screenshots of the posts in question be emailed to him. Six screenshots of Mr. Martin’s Facebook posts were subsequently emailed to Constable Walsh (para 7).
The first screenshot is a photograph of a man with a gun on the floor in front of him, with the words “Ed’s Post” appearing over the picture (para 8). The second shows a partially masked man holding a gun, pointed towards the camera, with the same words over the picture (para 9). The third screenshot contains five separate photos. Some show a masked man holding a gun, and the others are what appears to be Mr. Martin holding a gun. The accompanying words state: “told U I ain’t joking. Walk into my house again pigs” (para 10). The fourth, fifth, and sixth screenshots once again depict Mr. Martin holding a gun in different positions (paras 11-13).
The contents of the screenshots were described in detail at the voir dire, the separate hearing within a trial in which the trier of law determines the admissibility of evidence. At the voir dire, Constable Walsh testified that he believed the screenshots were photographs of Mr. Martin’s Facebook profile and identified the unmasked man in a couple of the screenshots as being Mr. Martin (paras 14-15). Constables Stuckless and Soo testified that when police had searched Mr. Martin’s residence, they found a bag with seven rounds of 7.62 ammunition, red sneakers matching those worn by the masked man in several of the screenshots. They stated that the colour of the walls of Mr. Martin’s home also matched those in the screenshots (para 18).
On the central question of the admissibility of screenshots, the trial judge at the voir dire refused to admit them as evidence. The judge reasoned that they were inadmissible since the person who had possession of the screenshots wished to remain anonymous, and the screenshots were presented to the Court through Constable Walsh, who was not able to speak to their authenticity himself (para 21). The most he could prove was that they were the same screenshots sent to him via email, not that they were truly photographs taken of Mr. Martin’s Facebook profile, attributable to Mr. Martin. No one testified to confirm their authenticity or to affirm that they had not been altered, and no computer was seized or searched from Mr. Martin’s home to be analyzed for such confirmation.
Newfoundland Court of Appeal Decision
At the NLCA, the case turned on whether the trial judge had erred in excluding the screenshots as evidence. This involves determining whether the screenshots submitted were and could be authenticated to meet the test for admissibility of evidence. In deciding the matter, the Court began by providing an overview of the law relating to electronic evidence, stating first that Facebook posts have been ruled to be electronic evidence in cases such as R v Hirsch, 2017 SKCA 14, and R v Richardson, 2020 NBCA 35. This means they fall within the definition of electronic documents under section 31.8 of the Canada Evidence Act, RSC 1985, c C-5 [CEA].
The SCC in R v Mills, 2019 SCC 22 [Mills], however, decided that screenshots of Facebook posts, also originating electronically, are themselves simply copies of the original electronic material. The SCC in Mills determined that “nothing turned on the use of a screenshot to capture the conversation, and because the conversation captured on the screenshot is admissible, the screenshot of the conversation was admissible” (Martin, para 28). The NLCA follows this line of reasoning to find that the screenshots of Mr. Martin’s Facebook page are copies of the electronic posts and, as such, it is “immaterial” whether screenshots were used to make such copies or some other method (para 29). The NLCA found, therefore, that it is not the screenshots that require authentication, but the electronic posts themselves.
The rules that govern which electronic evidence meets the procedural requirements to be included as evidence are section 31.1 of the CEA, the rule of authentication of electronic documents, and section 31.2, the “best evidence” rule. Any electronic evidence tendered in a trial is subject to these procedural requirements, which are codifications of the common law in this area. On the first matter relating to authenticity, the NLCA explained that this threshold for admissibility of authenticated electronic documents is low, which has been affirmed by the Court in cases such as R v CB, 2019 ONCA 380 [CB] (paras 65-68). This relatively low standard, as articulated in R v CB, is that there be “some evidence that the item is what it purports to be,” which can be established by both “direct and circumstantial evidence” (para 66).
Applying this law to the case at hand, the NLCA disagreed with the Crown on what the trial judge had decided regarding the evidence. The Court agreed that the trial judge found the Facebook posts were not properly authenticated, but did not agree that that trial judge placed the burden of authentication entirely on the source of the anonymous tip. Rather, the trial judge’s decision showed that “she effectively required direct evidence from a witness who could testify to having seen the posts on Mr. Martin’s Facebook,” in order to sufficiently authenticate them (Martin, para 45). The fault of the trial judge, according to the Court, is in failing to consider the circumstantial evidence submitted by the Crown to authenticate the posts. This failure to consider relevant evidence material to the issue is an error in principle (para 45), and according to case law, circumstantial evidence can be used to establish the authenticity of electronic evidence (CB, para 68; R v Farouk, 2019 ONCA 662; R v Durocher, 2019 SKCA 97).
The NLCA stated that the circumstantial evidence pointing to the authenticity of the electronic evidence was considerable in the case at bar. This included the police officers’ testimony that they appeared to be real Facebook posts, the officers’ identification of the room in the photographs as the same room in Mr. Martin’s home, and the word’s “Ed’s Post” over the pictures that attribute them to Mr. Martin and his Facebook (para 52). While this circumstantial evidence does not constitute proof of guilt, it is sufficient to establish that the screenshots are authentic to meet the standard of admissibility under the CEA.
On the “best evidence” rule under section 31.2 of the CEA, the NLCA stated that the purpose of this provision is to “to ensure that an electronic system which records or stores an electronic document does not alter, distort, or manipulate the document such that its integrity, or what the document purports to be, is affected in a way that matters” (para 57). The question of “system integrity” turns on whether in the case at hand, a court can be assured that the device that stored the electronic evidence did not change or alter the document. If witnesses that can attest to this integrity are not available, such as in Mr. Martin’s case, a presumption of integrity applies pursuant to section 31.3 of the CEA, when “there is evidence capable of supporting a finding that the devices […] were operating properly” (para 60), so as not to deprive the court of relevant evidence. The NLCA described this requirement is a “tall order for a tendering party” and Courts have rejected the need for expert evidence in this regard (para 58).
Applying this to Mr. Martin’s case, the NLCA found that the fact that the screenshots were obtained by Constable Walsh through someone else, rather than directly from the computer where they were stored, does not jeopardize a finding of system integrity sufficient to meet the “best evidence” threshold (para 66). The Court determined that Constable Walsh’s testimony regarding his familiarity with Facebook, the structure of the screenshots, and subsequent inferences that they had not been tampered with, is sufficient to meet this test (para 67). Therefore, the Court ultimately found that the screenshot evidence met the procedural requirements under section 31 of the CEA and, therefore, the trial judge had erred in failing to admit them (para 74).
Predicting an SCC Decision
It is likely that following the Crown’s decision to seek leave to appeal, given the nature of the issues at hand in Martin and the frequency with which appellate decisions interpreting section 31 of the CEA have appeared in the past few years, that the SCC will take the opportunity to expand the common law in the area.
Ultimately, the NLCA decided that the threshold of authenticity and “best evidence” requirement for screenshots to be admitted as electronic evidence is a low one. Evidence as circumstantial as the officers’ familiarity with Facebook is sufficient to operate in favour of such evidence meeting the standard and being included. An exploration of this question by the SCC would undoubtedly shed needed light on the ever-evolving intersections between social media and electronic evidence. It is necessary that an accused in a criminal trial is aware of all the evidence that could foreseeably be submitted to incriminate them, in order to fulfill their right to a fair and informed trial.
That being said, the lowering of this standard also raises concerning questions about increased criminalization of segments of the population. This past summer, as protests filled the streets of Toronto in response to the renewed Black Lives Matter movement, it was reported that Toronto Police were “monitoring social media posts about Toronto protests.” As reports of the increased criminalization of protestors move through the country and concerning reports reveal the RCMP’s use of social media tracking to anticipate crime, such a low standard for authenticity—particularly in cases where second-hand sources send screenshots to the police—could stoke the fire of the disproportionate criminalizing of marginalized peoples both in real life and, increasingly so now, on the Internet.
If the law is being interpreted to provide little obligation for law enforcement to prove the validity of electronic evidence that supposedly incriminates an accused, it raises issues about how this could further exacerbate disproportionate criminalization and use social media as another site through which to exercise it.