social media evidence, rules of evidence, gender-based violence, GBV, feminist equality lens
We examine various aspects of digital evidence at GBV trials, drawing on relevant Canadian criminal case law. First, we describe some of the unique challenges related to electronic documents generally with respect to determining authorship. Second, we review some of the historical and ongoing practices within the criminal justice system that rely on harmful gendered myths about GBV and note the potential for these myths to emerge in relation to digital evidence. Third, we discuss the duty of investigating police officers to gather the necessary available digital evidence to demonstrate authorship and note potential gaps in current investigatory practices that could negatively impact the trial outcome for victims of GBV. Fourth, we review some of the evidentiary rules for admitting and authenticating digital evidence at trial, discussing how these rules have been interpreted and applied in the GBV context. Fifth, we examine what evidentiary burdens the Crown faces in proving authorship at trial, highlighting the developing nature of law in this area. Finally, we conclude with several recommendations for various justice system actors on how to manage digital evidence in GBV cases where authorship may be contested.
While the focus of this article is on examining and making recommendations in relation to the use of digital evidence in GBV criminal trials, we recognize significant systemic problems with the criminal justice system that make it an undesirable and unrealistic option for many victims of GBV. Victims are not always believed by the police even when they have legitimate claims, and many ongoing practices within the adversarial trial process create additional trauma for some GBV victims. It is well documented that many Indigenous and Black individuals, people of colour, and members of the LGBTQ2s+ community have experienced discrimination when engaging with the police and justice system, and as such members of these groups may be particularly disinclined to rely on the criminal justice system to address violence against them. In Canada, there is a long history of the justice system ignoring reports of violence against Indigenous women and girls, and in some cases police and other justice system actors have directly perpetrated this violence, leaving deep-seated distrust in the criminal justice system and a desire for alternative options for addressing GBV. As a result, many advocates and victims have been exploring alternative methods of justice and calling for the transformation or even abolition of criminal justice- based systems. Many victims of GBV choose not to engage with the criminal justice system, and others continue to face discriminatory systemic barriers in accessing justice within that system. Within the context of these varied and valid critiques, the recommendations in this paper are premised on the notion that, so long as the criminal justice system remains the primary state-supported mechanism for dealing with GBV, it must be accessible to all victims, all of whom are entitled to investigatory and trial processes that are fair, treat them with dignity, and do not rely on discriminatory beliefs.
Suzie Dunn and Moira Aikenhead, "On the Internet, Nobody Knows You are a Dog: Contested Authorship of Digital Evidence in Cases of Gender-based Violence" (2022) 19:2 CJLT 371.