A video of a person making a hurtful comment. An audio recording of a threat is made. The image appears to document something.A picture appears to substantiate an assertion. Over the years, these types of pieces of evidence have been considered to be robust evidence. With AI today, fake videos, voices and images can look real. These are referred to as deepfakes.
Now Canadian courts are having to ask themselves a difficult question: How do one know what one is seeing is true? This blog details the way courts examine digital evidence, what happens when someone asserts that digital evidence is bogus and what the effects may be.
What Is a Deepfake?
A deepfake is AI-generated audio, video or an image that depicts something that never actually occurred. Can replace a face, duplicate a voice, create an entire scene. Fake material is readily available and can appear in any type of conflict, from criminal to civil, family and employment.
How Courts Test Digital Evidence
The laws governing the admissibility of digital evidence remain unchanged due to deepfakes. Under section 31.1 of the Canada Evidence Act, the person who wants to use an electronic document must prove it is authentic. They are required to provide evidence that will support a determination that the document is as it states.
Similar rules are to be found in the provincial evidence laws for matters under provincial law. Examples include Ontario, Alberta and Manitoba.
There is no high bar at this point. Anyone who has taken a picture can swear it’s real. If the speaker is known, a recording can be stated to be his/her voice. This is usually sufficient to present evidence to the court.
What happens When People Say It’s Fake?
In R v Medow (2025) an Ontario court considered a situation where the Crown’s video was digitally altered and potentially a deep fake. The court acknowledged the existence of deepfake technology and its increasing problem in the justice system. It also cautioned that the authentication process should not render itself useless because of the growing sophistication of fake material.
Courts are not complacent but neither are they accepting of all claims of fakery. A mere hint that a video has been a deepfake isn’t sufficient. A challenge is more robust when it refers to:
- Some specific signs of tampering
- an obvious reason to make up the content
- Evidence obtained by a competent forensic doctor.
Evidence can be important for both sides. A court might want an expert to assist in authenticating the recording where there’s a reason, such as the witness may have to lie. In R v Aslami, an Ontario Court of Appeal judge noted that some digital evidence may need expert authentication, because there are many ways to make electronic evidence look like something it is not.
Admitted Does Not Mean Believed
This is not the end of the matter when they pass the authentication step. The judge or jury would still determine the value of the evidence. The Canadian Judicial Council points out that a recording can be accepted as authentic and yet have little value.
This implies that if you can create a convincing clip, it is not the end of the story. The courts consider the entire case, whether there are witnesses or evidence to corroborate what the clip seems to indicate.
The Opposite Risk: Real Evidence Called Fake
Most discussion focuses on fake evidence getting into court. However, the reverse is of concern to judges too. In October 2026, the Canadian Judicial Council issued new guidance for judges regarding the evaluation of digital media evidence, which may include the possibility of a deepfake.
The warning from the guidance also highlights a similarly serious risk: the real evidence being successfully discredited as forgery and then rejected. This is sometimes referred to as the “deep fake defence” or the “liar’s dividend.”
The guidance does not change the law of evidence. It promotes a balanced approach. A judge’s job should not be to decide whether to admit or reject digital evidence because of the possibility of deepfake technology and should not require additional authentication in every instance.
Consequences for submitting fake evidence
Spreading false information is not something to be taken lightly. Fabricating evidence which is intended to mislead a court is an offence under Section 137 of the Criminal Code. Penalties can range up to 14 years in prison.
The Canadian Judicial Council also states that fabricated evidence “poses problems of abuse of process and professional responsibility. A lawyer who is negligent in using false information may be subject to discipline.
If you have a case, or you are dealing with one, here are some tips.
- Preserve original files. Keep original recording and image, not just copies, screenshots or forwarded versions.
- Preserve the details. Document who has been involved with the material, where and when it was produced.
- Identify witnesses early. Be familiar with who can verify the material’s authenticity.
- Raise concerns promptly. If you believe that any evidence presented in opposition is bogus, inform your attorney immediately so they know and consider it at an appropriate time.
- Think about experts. Although it is an added expense, a digital forensic expert can prove useful in a contested case.
Conclusion
Many Canadian courts are not changing their laws based on what is called a deepfake. They are being more careful and deliberate in applying the existing rules for authentication, asking for more help when uncertain, and weighing all the evidence together.So that you don’t make two mistakes. Assert that a piece of evidence is not true or you believe that a piece of evidence is true when it is not.
If you are in a legal situation with digital evidence being relevant, consult with a lawyer early. They can help you preserve your own evidence and properly attack questionable evidence.
Concerned About Digital Evidence in Your Criminal Case?
In today’s world of deepfakes and AI-generated videos, images, and audio, determining whether digital evidence is genuine can make a significant difference in a criminal case. Whether you are facing allegations based on a recording or believe that digital evidence against you has been manipulated, it is important to understand your legal options.
Speak with an experienced criminal lawyer in Brampton to understand how digital evidence may affect your case, protect your rights, and determine the appropriate steps to challenge questionable evidence.
Contact our Brampton criminal defence team today for a confidential consultation
