The moment you send a text message, its words can become important evidence in a criminal case. A message can be read aloud, examined word by word and debated in court for days. What seems like an ordinary conversation can sometimes take on a completely different meaning in a legal setting.
Consider the hypothetical message, “Let’s see you tomorrow.” The Crown might interpret it as a threat, while the defence might argue that it was simply a harmless joke between friends. The words remain the same, but their meaning can become a matter of serious dispute.
This blog explores how digital conversations are collected, authenticated and interpreted in Canadian criminal courts, and why context matters when text messages are presented as evidence.
How Messages Reach the Police
Police generally get the messages from a phone or from a service provider, the usual way being a search warrant or a production order. They may also volunteer messages from a person that is engaged in a conversation.
Part of the Charter of Rights and Freedoms restricts the police in their ability to do so. A 2017 Supreme Court of Canada decision (R v Marakah) confirmed a person may have a reasonable expectation of privacy in a text sent to a third party’s cell phone. The incriminating messages had been found on the recipient’s phone by the police. The Court found that Marakah’s rights were violated and quashed his convictions and imposed acquittals.
The decision is subject to certain restrictions. Does not indicate that all text messages are excluded. Only messages excluded if found based on unreasonable search or seizure. The Court has considered police searches of cell phones at arrest in R v Fearon (2014). It amended the rule and most still objected to the exclusion of the evidence discovered.
Proving a Message Is Real
Prior to considering the meaning of a message, a court must be convinced that the message is authentic. This is known as authentication. The party presenting an electronic document is required to provide evidence that might support a determination that the document is the object of the authentication under section 31.1 of the Canada Evidence Act.
The Ontario Court of Appeal stated this is a low threshold. In R v C.B. (2019), the court further stated that the accused can rely on either direct or circumstantial evidence without necessarily having an independent witness. Phone numbers, names, writing style, the context of the conversation and someone who received the message can all help.
This must also comply with the best evidence rule as set in section 31.2. That rule exists for the purpose of demonstrating the true accuracy of the document that reflects the original information.
A message can be introduced into court and its admission notwithstanding, a court may still be reluctant to believe it. The message is sent to the court by authentication. The judge or jury then determines the weight that should be given it.
The Real Fight: What Does It Mean?
The vast majority of conflicts do not involve whether or not a message was sent. They’re about what it meant.
Context decides. A short message can switch around based on the discussions that surround it, the dynamics of the relationship, the tone in which they speak, as well as the events that followed. All that could be captured on one screen shot.
Emojis bring it to the top. A Saskatchewan court ruled in South West Terminal v Achter Land & Cattle (2023) that a thumbs-up emoji was an offer accepted. It was a civil case and not a criminal case. The appeal court also clarified that “thumbs up” isn’t synonymous with “I agree.” Variations are dependent on the situation.
The threat test. In the case of threatening words, the court will ask itself how a reasonable person, who knows the circumstances, would interpret the words. This test is taken from the Supreme Court case of R v McRae (2013). It doesn’t mean ‘I was just joking’ ends the discussion, nor does the other person’s response.
Expert help. Some believe that the slang, coded language or emoji meanings are too ambiguous and experts should help the court. Other people say that it can be worked out by ordinary jurors. This is a matter for the courts to determine on a case-by-case basis.
The Whole Conversation Matters
Every side paraphrases the bit that suits it. The Crown has the power to emphasize an alarming message. The defence can refer to the previous and subsequent friendly messages.In cases where the jury has the whole conversation – with all its context – in mind, it is easier to influence their decision-making.
Practical Tips
- Keep complete conversations. Don’t use a single screen shot. Keep the whole thread including dates and times.
- Avoid removing messages during an argument. When you delete, it can look like a suspicious action and can lead to legal issues as well.
- Think about what you are sending before you click on send. Sarcasm, humor, and emojis may read very differently to someone who does not know you.
- Do not contact the complainant or witness in regards to your case. This is due to restrictions of your release.
- Before turning over your cell phone or answering questions about your texts, talk to a lawyer.
Conclusion
In Canada, text messages can be a very effective piece of evidence in criminal trials. They are required to be legally acquired, certified and read in context. After that, the most important thing is: what was the meaning of the message?
Should your message have any implication for the legal aspects of your criminal case, you should immediately contact a criminal defence lawyer. This way, you will be able to protect yourself and give out all the information that you need to give.
Don’t let a misunderstood text message put your freedom at risk. Speak with a trusted bail hearing lawyer Milton to discuss your situation, understand your rights and get the legal guidance you need.
