Technology is now a fact of life in criminal courtrooms. There is rarely a case now that does not have some aspect of digital evidence, whether it is a text message or computer forensic report. However, the courts are often catching up to the changes. “Digital Evidence: A Practitioner’s Handbook” by Gerald Chan and Susan Magotiaux tackles the challenges of the changing landscape of technology in criminal courts.
The book is, frankly, a much-needed resource for practitioners who appear in courtrooms on criminal matters. Given the slow pace of technological advances in the criminal courts, lawyers are often tasked with the role of educating judges with respect to novel issues in digital evidence. And when the issue may be novel to the lawyer themselves, it is critical to know what questions to ask.
The book is divided into three broad categories: search and seizure, disclosure and the use of evidence. The first part focuses on the changing analysis of the ‘reasonable expectation of privacy’ in an increasing digital world. The authors sketch out how various cases have adapted the factors in the privacy analysis in R v. Edwards to fit differing circumstances, including energy consumption data, subscriber information, online activity and sent communications. This section draws mostly on the seminal cases like R v. Spencer, R v. Fearon and R v. Vu to interpret and analyze different fact patterns. The authors conclude that there are no clear fixed lines in determining privacy in a digital age, but highlight the factors that will influence the analysis.
Part II highlights some of the challenges that accompany digital disclosure and provides strategies for managing disclosure in Internet child exploitation cases as well as specific situations such as the in-custody accused. These sections are more practical than theoretical, and touch on the challenges of managing disclosure requests and large amounts of data in complex cases, suggesting different strategies.
The final section, Use of Evidence, gives an important primer on the law of evidence with respect to the digital material. The authors outline the threshold issue of authenticity, drawing on the Canada Evidence Act and common law rules and providing examples ranging from Facebook posts to MSN messenger texts, to photographs that are posted on websites. The book offers practical suggestions in terms of what counsel should be considering in terms of the admissibility and weight of the evidence, including whether it should be adduced through an expert or a civilian witness and whether there are issues with the chain of continuity. The authors also explore the Best Evidence rule, as well as the considerations with expert testimony.
Given that the law is changing as technology develops, there are often no clear answers to unique and novel legal questions. Instead of giving definite answers, the book prompts counsel, both defence and Crown, to ask the right questions. In my opinion, the book’s greatest strength is in providing frameworks of factors and considerations that counsel should bear in mind when approaching different cases, often drawn from seminal cases to set down the basic principles of an emerging area of the law. In doing so, the authors are providing counsel with evidentiary background for thoughtful and informed advocacy on issues involving technology.
The book will no doubt need to be updated as the law develops alongside new technological advances. But as it stands, it provides an important foundational understanding of the law of search and seizure and evidence, along with practical considerations for digital evidence.