Text messages have become a common source of evidence in Canadian criminal investigations. Conversations that once would have taken place in person or over the phone now leave a digital record that may remain accessible months or years later.
Police may encounter text messages while searching a cellphone, reviewing screenshots provided by a complainant or examining data obtained during an investigation. Those messages can sometimes become important evidence at trial.
According to Manbir Nirwal, Brampton criminal defence lawyer and founder of Nirwal Law, the existence of a text message does not necessarily prove who wrote it or what the sender intended. Digital communications still need to be examined in context and must meet the legal requirements for admission into evidence.
How Do Police Obtain Text Messages?
There are several ways text messages can become part of a criminal investigation.
A complainant or witness may voluntarily provide screenshots of a conversation to police. Investigators may also discover messages when examining a cellphone that has been lawfully seized and searched.
Depending on the circumstances, police may need judicial authorization to search a device or obtain certain digital information.
Section 8 of the Canadian Charter of Rights and Freedoms protects against unreasonable search and seizure. Canadian courts have recognized that cellphones contain highly private information, which means searches of digital devices can raise significant Charter issues.
A defence lawyer may examine how police obtained the messages before addressing what the messages actually say.
How Can a Court Know Who Sent a Message?
A screenshot showing someone's name at the top of a conversation does not necessarily establish authorship.
Before electronic communications can be relied upon as evidence, there may be questions about authentication. The party presenting the evidence generally needs to provide a basis for concluding that the electronic document is what they claim it to be.
The surrounding evidence can become important.
A court might consider the phone number associated with the messages, the content of the conversation, information known to the participants and other evidence connecting the accused to the account or device.
Someone else having access to a phone or account could also become relevant.
Context Can Change the Meaning of a Message
Individual messages can look very different when removed from the conversation surrounding them.
Consider a message stating, "You're going to regret this."
Standing alone, the words may appear threatening. The meaning could change considerably depending on what was said before and after the message, the relationship between the participants and the circumstances in which it was sent.
Sarcasm, jokes and slang can also be difficult to interpret from written words alone.
This is one reason a criminal defence lawyer may want to examine the complete conversation instead of relying on selected screenshots.
What Types of Cases Can Involve Text Messages?
Text messages can appear in many types of criminal proceedings.
They may become relevant in cases involving criminal harassment, uttering threats, assault, intimate partner allegations, fraud or drug offences.
Messages may be used to establish communication between individuals, provide evidence of a person's state of mind or help establish a timeline.
They can also assist the defence.
A complete conversation could contradict an allegation, support an accused person's account or reveal information that was missing from the initial complaint.
Digital evidence does not inherently favour one side.
Can Deleted Messages Be Recovered?
Deleting a message does not necessarily mean that every copy of it has disappeared.
The recipient may still have the conversation. Screenshots may exist. Information could also remain on another connected device or within a backup.
In some investigations, forensic examination may recover information from electronic devices.
Anyone who learns that they are under criminal investigation should be cautious about deleting or altering potentially relevant information. Destroying evidence can create additional legal problems and may complicate the defence.
Preserving the original information can allow a lawyer to assess the complete record.
What If Police Obtained the Messages Illegally?
When text messages are obtained through a search that violates an accused person's Charter rights, the defence may ask a court to exclude the evidence under section 24(2) of the Charter.
A Charter breach does not automatically result in exclusion.
Courts consider the circumstances surrounding the violation, its impact on the accused's protected interests and society's interest in having the case decided on its merits.
Digital privacy can play an important role in this analysis because phones often contain extensive personal information unrelated to the alleged offence.
Digital Conversations Require Careful Analysis
Text messages can be persuasive because they appear to provide a direct record of what someone said. Yet their meaning and reliability can still be disputed.
Who sent the message? Is the conversation complete? What was happening when it was written? Were the messages obtained lawfully?
Those questions can matter significantly in a criminal case.
Manbir Nirwal is the founder of Nirwal Law and practises criminal defence in Ontario. Nirwal Law represents individuals facing criminal charges and assists clients with matters involving police investigations, Charter rights and digital evidence.