In a recent case, the Ontario Court of Appeal allowed an appeal from the conviction of a man for firebombing his ex-wife’s house. Messages sent on various apps had not been subjected to examination to see whether they could have been sent to ‘frame’ the accused for the offence.

In R. v. Aslami, 2021 ONCA 249 (CanLII), the trial judge admitted evidence of text messages sent by the accused to his ex-wife. The following quotations sum up the issue.

“Before and after the firebombing, the appellant’s ex-wife and S.F. received several messages, both by text and on social media platforms. The contents of some of those messages suggested that the sender was involved in the firebombing. At trial, both the appellant’s ex-wife and S.F. testified to their belief that it was the appellant who had sent these messages. Indeed, it was the appellant’s ex-wife who showed the messages she received to the police, which led to the appellant’s arrest.”

“The defence theory was that some, or all, of these messages were, in fact, created by the appellant’s ex-wife and S.F. in order to frame the appellant for the firebombing and cause his removal from Canada. The appellant did not testify, nor did the defence lead any other evidence.”

“This case demonstrates the risks associated with not paying adequate heed to the dangers that are associated with relying on text and other messages, absent expert evidence explaining how various pieces of software, or “apps”, can be used to generate these messages, and how reliable the resulting messages are in different respects. Put simply, it is too easy to use various pieces of software to create, or manipulate, messages such that they can appear to be from someone when, in fact, they emanate from an entirely different person. Similarly, the timing of the messages can be altered to suit a particular purpose.”

“The bigger problem for the prosecution, however, is that the case did not rest on the contents of the SMS text messages. Rather, the incriminating messages were obtained from the TextNow app. Indeed, the appellant’s ex-wife testified that “[o]ur whole argument was over the TextNow app.” Unlike the SMS text messages, not only were the TextNow messages obtained in an unusual and not especially reliable way, there was nothing in the content of those messages that objectively established the appellant as the sender nor, as I have mentioned, was there any expert evidence offered regarding the functioning and reliability of the TextNow app.”

” As I said at the outset, trial judges need to be very careful in how they deal with electronic evidence of this type. There are entirely too many ways for an individual, who is of a mind to do so, to make electronic evidence appear to be something other than what it is. Trial judges need to be rigorous in their evaluation of such evidence, when it is presented, both in terms of its reliability and its probative value. The trial judge did not engage in that rigorous analysis in this case. In fairness, the trial judge was not assisted by the prosecution in this task. The prosecution ought to have called expert evidence to address the issues that the evidence posed, but they did not.”

Full text here: https://www.canlii.org/en/on/onca/doc/2021/2021onca249/2021onca249.html?searchUrlHash=AAAAAQAMTWlsYWQgQXNsYW1pAAAAAAE&resultIndex=1