Your social media is admissible in court: Saying your phone was hacked is unlikely to fly

If you ever find yourself in court, the evidence against you could end up being your own texts or Facebook messages.

Given the proliferation of social media today and our increasing reliance on it to communicate, it is no surprise that lawyers and judges are increasingly being confronted with how to handle evidence that includes it.

In one of the more notable cases in Canada, a Saskatchewan man faced a trial for sexual assault against a teen girl where key evidence included lurid Facebook messages he sent to her.

During trial, defence counsel urged the judge to find reasonable doubt that Phillip Durocher wrote the messages because of testimony that the man’s phone was often lying about the house without password protection. In other words, someone else could have written the messages.

The trial judge rejected that notion and convicted Durocher based largely on testimony from the teen and the Facebook messages.

Durocher appealed, arguing in part that there should have been a hearing on the admissibility of the Facebook messages.

In weighing the case, the Court of Appeal for Saskatchewan emphasized that for social media messages to be admissible, it must be proven that the purported sender indeed sent the messages and that they are pertinent to the case.

It ultimately rejected the argument that the judge erred in allowing the messages into evidence and dismissed the appeal.

The appeal court’s decision underscores a critical point: the mere fact that a message exists on a social media platform does not automatically render it admissible in court. There must be a clear linkage between the message and the individual claiming to have sent it, coupled with its relevance to the matter being litigated.

The findings serve as a pivotal reference for understanding the nuances of admitting social media messages as evidence in Canadian courts.

It reinforces the necessity for a meticulous examination of electronic communications, ensuring they meet the stringent criteria of authenticity and relevance before being admitted as evidence.

This case reflects the judiciary's effort to adapt legal principles to the realities of digital communication, ensuring that the integrity of the judicial process is maintained in the face of evolving technology.

Mel K. Norton is a Partner with Lawson Creamer. He can be reached at mnorton@lawsoncreamer.com.