Texts on Trial: The Reliability of Digital Evidence in R v Aslami

Author: Carly Zelisney

With over 23 billion text messages sent globally each day—270,000 messages per second—and 2.52 billion people using messaging apps, digital communication has not only transformed how people connect but also how evidence is gathered in courtrooms.[1] In R v Aslami, the Ontario Court of Appeal tackled the intricate issues surrounding text messages as evidence, highlighting the risks of relying on electronic communications to establish guilt or innocence.[2] This case sets an important precedent in Canadian criminal law by demanding stricter standards for authenticating and verifying digital evidence, emphasizing the judiciary's commitment to ensuring reliability and fairness in an era of pervasive digital interaction. In this blog, I argue that the trial court failed to properly authenticate and analyze critical digital evidence that ultimately led to Aslami’s initial conviction.

Summary of R v Aslami

R v Aslami revolves around a criminal conviction for arson with disregard for human life and related offences, where the central issue was the reliability and admissibility of electronic evidence and identification testimony.[3] The appellant, Aslami, was accused of orchestrating a firebombing that resulted in significant property damage and posed a serious risk to human life. One day prior to the firebombing, Aslami had received an intimate photo from his ex-wife of her in bed with a man referred to as S.F. Shortly after, a homemade explosive device was thrown through the window of S.F.’s former partner’s house resulting in a fire.[4] In addition to the firebombing, both Aslami’s ex-wife and S.F. claim to have been receiving suspicious electronic messages that they believed were from Aslami.[5]

The prosecution's case against Aslami relied heavily on these electronic communications, arguing they contained details about the firebombing that only someone involved in the crime could have known. The prosecution argued that these messages, in addition to a surveillance video, were critical to establishing Aslami's involvement in the crime.[6] However, the appellant contested the authenticity of these communications, pointing out that messaging apps allow users to create anonymous accounts and fabricate fake conversations.[7] There was no digital forensic expert called to testify about the messaging app's function or to verify the legitimacy of the messages.[8] The absence of expert verification raised concerns about the reliability of the evidence and whether it could be definitively linked to Aslami.

In addition to the electronic messages, the prosecution introduced surveillance footage from a nearby security camera that allegedly showed Aslami near the scene of the crime on the night of the firebombing. However, the video was of poor quality, making it difficult to clearly identify the individual in the footage.[9] The appellant’s ex-wife was asked to provide opinion evidence as to whether it was Aslami in the video. While she stated that the person in the video resembled Aslami, her testimony lacked confidence due to the low resolution of the footage and her inability to make a clear visual match.[10] The defence argued that such a weak identification should not be sufficient to secure a conviction, as the video evidence itself did not clearly establish the appellant’s identity.

The case also included circumstantial evidence where a stolen van was used in the commission of the crime. The prosecution presented evidence that the van was stolen shortly before the firebombing and was seen near the scene of the crime.[11] However, there was no direct evidence connecting Aslami to the van, such as fingerprints or DNA. Instead, the prosecution relied on the timing and circumstantial evidence that suggested Aslami might have had access to the vehicle.[12] The appellate court noted that the only plausible way this theory could make sense “would involve an incredible coincidence, and one for which there is absolutely no evidence.”[13]

At the trial level, the judge allowed the identification testimony from the ex-wife and admitted the electronic messages despite the lack of expert verification, leading to Aslami's conviction.[14] On appeal, the Ontario Court of Appeal considered whether the trial judge had erred in admitting this evidence. Ultimately, the Court found that the evidence presented was insufficient to reliably establish Aslami’s involvement in the crime. The decision was based on the unverified nature of the text messages and the questionable reliability of the identification testimony, ultimately leading to an order for a new trial.[15] 

Text Message Authentication and the Best Evidence Rule

Aslami highlighted the importance of authenticating digital evidence before it is admitted to court. Although other forms of evidence were included at the trial level, it is clear that the foundation of the case was based on the alleged SMS and social media messages between the accused and his ex-wife. Before digital evidence is admitted to court, it must first be authenticated and satisfy the best evidence rule. This is the stage where the appellate court believed the trial judge erred. In order for digital evidence to be authenticated, counsel must prove that whatever they are admitting is in fact what they say it is.[16]

Aslami’s ex-wife testified that the SMS messages she received were from “Sumal Jan,” her ex-husband’s name from back home.[17] She also testified to and provided screenshots of a conversation between herself and “Sumal Jan” on a messaging app called TextNow.[18] Additionally, screenshotted messages from an anonymous Facebook account to S.F. were used as evidence as S.F. believed they were connected to Aslami.[19] Although the bar for authenticating these types of evidence is remarkably low, the only verification of the Aslami evidence was clearly based on unreliable witness testimonies. When the appellate court re-examined this evidence, they found that the SMS messages were not even registered to Aslami’s phone number, and his ex-wife had multiple contacts labelled “Sumal Jan” on her phone.[20] Similarly, the TextNow and Facebook messages had no indication of who actually sent them or when they were sent, nor was any expert contacted to determine the reliability of the apps.[21] Despite this, the trial judge determined that this digital ‘evidence’ was trustworthy based on that fact that the messages all evoked the same ‘angry tone,’ which therefore meant they must have come from Aslami.[22]

The best evidence rule states that when relying on a secondary copy of a document, physical or digital, and no original copy is available, it is up to counsel to show that this copy has not been tampered with and the system it was stored on is reliable.[23] This was not the case in Aslami. Additionally, the witness or complainant providing the evidence should explain how the messaging apps work and verify that they were all working properly at the time the evidence was gathered, something both Aslami’s ex-wife and S.F. were not asked to do.[24] Ultimately, the Aslami case proves just how vital it is for courts to scrutinize digital evidence effectively, as over-reliance on unverified or poorly authenticated evidence can undermine the integrity of the judicial process and lead to a wrongful conviction.

Future Implications

In today’s digital age, our electronic devices and digital footprint are increasingly being used as evidence in court. From text messages to social media posts and location data, digital evidence can play a significant role in establishing timelines, intent, and even identity. However, it is essential to understand the legal threshold for authenticating digital evidence before it is deemed admissible in court. Courts are becoming more vigilant about requiring proof that electronic evidence has not been tampered with or fabricated. This includes a careful review of how the evidence was obtained, who had access to it, and whether there are reliable indicators of its origin.[25]

Looking forward, as technology evolves, the implications of authenticating digital evidence will only become more complex. With advances in deepfake technology, AI-generated content, and data manipulation techniques, courts will need increasingly sophisticated methods to assess the reliability of digital information. Legal standards around digital evidence will likely need to adapt quickly to these advancements to ensure fair trials and accurate outcomes. As seen in R v Aslami, setting strict standards for the admission of electronic evidence is not just a matter of procedure—it is a safeguard against wrongful convictions and a step toward a more reliable justice system.

text message

Endnotes

[1] Andrea Giacomini, “The Past, Present And Future Of Messaging” (6 January, 2021) at para 5, online: <forbes.com>  [perma.cc/FE7A-83EX].

[2] R v Aslami, 2021 ONCA 249 [Aslami]

[3] Ibid at para 1.

[4] Ibid at paras 2-3.

[5] Ibid at para 4.

[6] Ibid at para 5.

[7] Ibid at para 11.

[8] Ibid.

[9] Ibid at para 40.

[10] Ibid at para 39.

[11] Ibid at para 3.

[12] Ibid at para 45.

[13] Ibid.

[14] Ibid at para 48.

[15] Ibid at para 52.

[16] Canada Evidence Act, RSC , 1985, c C-5, s 31.1-2.

[17] Aslami, supra note 2 at para 15.

[18] Ibid at para 20.

[19] Ibid at para 22.

[20] Ibid at para 15.

[21] Ibid at paras 20-29.

[22] Ibid at para 27.

[23] BC Society of Transition Houses, “Admitting Digital Evidence in Criminal Court” (24 February, 2021) at 5, online (pdf): <bcsth.ca/wp-content/uploads/2021/03/6.-Submitting-Digital-Evidence-in-Criminal-Court_FINAL_24Feb2021.pdf>

[24] Ibid.

[25] Canada Evidence Act, RSC , 1985, c C-5, s 31.3.