Recent case: Fake evidence including electronic records
Lenihan v Shankar 2021 ONSC 330: The legal issue at the heart of this case was on parenting arrangements for the parties’ child, but the decision also addressed the issue of fake evidence, and it is on that topic that this summary is focused.
Justice McGee began her decision with these comments:
Text messages, emails and social media postings have become leading sources of evidence across a wide array of criminal, civil and family disputes. Judges have before them the actual words and deeds of the parties, written or posted in the party’s own hand. Or do they?
In an era of ‘fake news’ it should come as no surprise that from time to time, courts will be presented with fake evidence. Accessible technologies have made it easier than ever to generate or alter phone calls, texts, emails, social media accounts, photographs and even experts’ reports in a manner than disguises their origin and fakes, or ‘spoofs’ their intended purpose.
Over the course of the family law proceedings, the mother engaged in a wide array of activities to support her case that the father was unfit to play a role in the child’s life. These included forged emails, an altered paternity test, a forged sperm donor agreement and a sham email exchange between the father and his lawyer.
In reviewing the electronic evidence, Justice McGee turned to the Evidence Act for guidance as to how to establish its authenticity and integrity. The Act defines “electronic record” as:
data that is recorded or stored on any medium in or by a computer system or other similar device, that can be read or perceived by a person or computer system or other similar device, and includes a display, printout or other output of that data. . .
Justice McGee then noted that “the required standard of proof is some evidence capable of supporting that the electronic document is what the party adducing it claims it to be.”
It is the person seeking to introduce an electronic document who has the burden of proving its authenticity.
In assessing the electronic evidence in this case, Justice McGee found that documents introduced by the father met the test, while many of those introduced by the mother did not. These inauthentic documents included emails which the mother claimed to have been sent to her by the father as well as emails she claimed had been sent to her by the father’s lawyer, manufactured Family Wizard logs, spooked pornographic Instagram posts, inauthentic emails from the father to the child’s doctors and school, and more.
After making her decision with respect to parenting arrangements for the child, Justice McGee made some final comments with respect to electronic evidence:
As our court transitions to a fully digital platform, this trial was a stark reminder of the potential for the manipulation and misuse of electronic evidence. . . . Any electronic medium can be spoofed: texts, emails, postings to social media, and even messaging through a reputable software program specifically designed to provide secure communications between sparring parents. What stood out in this case was the purpose of the spoofed communications. Instead of tricking or scaring the target, electronic communications were spoofed to deliberately damage the other parent’s credibility and to gain litigation advantage. . . .
Fake electronic evidence has the potential to open up a whole new battleground in high conflict family law litigation, and it poses specific challenges for Courts. Generally, email and social media protocols have no internal mechanism for authentication, and the low threshold in the Evidence Act that requires only some evidence, direct and/or circumstantial, that the thing ‘is what is appears to be’ can make determinations highly contextual. . . .
I urge lawyers, family service provides and institutions to be on guard, and to be part of a better way forward. Courts cannot do this work alone, and the work must be done well.
