In a United States courtroom in California, prosecutors read out loud the private text messages of former Theranos CEO, Elizabeth Holmes (“Holmes”). Later those messages made headlines around the world and people globally read intimate messages that includes “missing you in every breath and in every cell”. The Holmes trial is a perfect example of private electronic communications being placed on display for the world to see. Holmes was found guilty of criminal charges of wire fraud and conspiracy to defraud investors because a finding was made that she intentionally misled investors about her company and its products. Text message evidence showed issues of the company’s over spending, Holmes’ control of the company, and the silencing of whistle blowers. However, interwoven were text messages of a more intimate and personal nature between Holmes and her now ex-boyfriend, the former Chief Operations Officer of Theranos, Sunny Balwani. Text messages can be very personal in addition to being highly damaging to your case. Hypothetically had this case taken place in Ontario, would these private intimate messages, or any text messages, be admissible in court? These questions are answered below but they were also discussed on the CTV Your Morning segment on December 24, 2021, with Tanya Walker which can be seen here.
The General Rule
In Ontario electronic communications can be relied on as evidence in court so long as the evidence is authentic, relevant, material, and not covered by any form of privilege, hearsay or breach of the Charter.
The person seeking to introduce evidence into court has the burden of proving its authenticity. This is a low threshold to meet and messages sent from a person’s cellphone or sent from their account is enough to meet this threshold. For evidence to be relevant and material it must address or be related to a fact in issue. Meaning the evidence must go toward either proving or disproving a fact in issue.
Privilege or Hearsay
In certain circumstances information will be considered privileged and therefore inadmissible as evidence in court. For example, solicitor client privilege protects communication between clients and their lawyers. Spousal privilege protects communication between you and your spouse. Litigation privilege protects records created for the dominant purpose of existing or contemplated litigation.
In order to claim privilege over information it is necessary that the information stays confidential. Be carful when sharing or sending information to third parties because you may lose confidentiality and the ability to claim privilege over that information.
Additionally, hearsay makes the out-of-court statements of third-party’s who are not testifying inadmissible. An example of hearsay is testifying that you heard from someone that someone else had completed a wrong. This is inadmissible because there is no opportunity to cross examine the declarant, and so the court is only able to rely on the recollection of another person. There are exceptions to the hearsay rule, which allow the admission of hearsay evidence where the statements are reliably made or can be adequately tested. For example, the business records exception allows for the admissibility of any writing or record made of any act or occurrence in the usual course of business to be admitted into evidence even if it would otherwise be considered hearsay.
The General Discretionary Power
In civil law trials where the general rules above are met, the court retains the general discretionary power to exclude evidence if it believes the value of the evidence is out-weighed by its prejudicial effect. For criminal trials the test is whether the prejudicial effect substantially exceeds the probative value. Here the judge considers whether, even if properly instructed, a jury would be likely to use the evidence for an improper purpose. For example, there may be concerns that the introduction of the evidence would arouse extreme emotion, cause unfair surprise, or consume an undue length of time.
Protecting Your Rights
In a Criminal context, evidence retrieved by the police may be inadmissible where your Charter rights are infringed. Police require a warrant to search you or your premises, otherwise they may be in violation of your s. 8 right to be secure against unreasonable search or seizure and so evidence gathered without a warrant may be inadmissible. Further, even if the police have a warrant to search your home, they may not be able to access the information on your phone without your phone password. Without an assistance order to divulge your phone password the police cannot require you to tell them your password. Assistance orders in this context have been found to be a breach of peoples s. 7 right to life, liberty and security of person, and have been found to not be in accordance with the fundamental principles of justice and in particular the right to pre-trial silence.
When communicating electronically it is important to keep in mind that any text message you send may one day be read by a judge or jury. With that in mind, perhaps refrain from using electronic communication if you want to ensure that the information remains private.
Alternatively, if it is your normal practice not to save messages in the cloud, not all electronic messages may be retrieved at the time a court proceeding is initiated. Keep in mind that whoever you sent the messages to may still have them. Further, deleting messages once court proceedings are contemplated or commenced may be seen as tampering with evidence and considered spoilation of evidence.
Finally, the court may be willing to redact part of the evidence that is not relevant to the case. However, redaction may not be ordered unless it is based on privilege or confidentiality.
As the world becomes increasingly digital through remote work and electronic communication, it is becoming more difficult to not create a trail of information that can be recorded and eventually used as evidence. It is important to be aware that your electronic communications may one day be used as evidence.
 R. v. Khelawon, 2006 SCC 57 (CanLII),  2 SCR 787
 Evidence Act, RSO 1990, c E.23 s. 35(2)
 R. v. Shergill, 2019 ONCJ 54