July 02, 2025

Admissibility of Digital Evidence: Lessons from the Hockey Canada Trial

In the digital era, electronic communications like text messages, emails, and social media posts have become integral to criminal investigations and trials. However, their admissibility in court is governed by stringent legal standards to ensure fairness and reliability. The recent Hockey Canada sexual assault trial serves as a pertinent case study, highlighting the complexities involved in admitting digital evidence.

The Hockey Canada Trial: A Brief Overview

In May 2025, five former members of Canada’s 2018 World Junior hockey team faced sexual assault charges related to an alleged incident in London, Ontario. A pivotal piece of evidence was a text message sent by Brett Howden to teammate Taylor Raddysh, describing alleged actions by Dillon Dubé during the incident. The message read:

“Dude, I’m so happy I left when all the s–t went down. Haha. Man, when I was leaving, Duber was smacking this girl’s ass so hard. Like, it looked like it hurt so bad.”

The Crown sought to admit this message as evidence. However, Ontario Superior Court Justice Maria Carroccia ruled it inadmissible due to its unverifiable nature, dealing a significant setback to the prosecution’s case. 

Justice Carroccia had concerns about the accuracy of the text messages, because he was scared, nervous and not attempting to be factual when writing his text message to his roommate.

Legal Framework for Digital Evidence in Canada

Definition and Scope

Under the Canada Evidence Act (CEA), “electronic documents” encompass data recorded or stored on any medium in or by a computer system, including text messages, emails, and social media posts. 

Authentication Requirements

Section 31.1 of the CEA stipulates that any party seeking to admit an electronic document must prove its authenticity. This involves demonstrating that the document is what it purports to be, which can be achieved through:

• Testimony from a witness familiar with the document.
• Metadata or digital signatures verifying the document’s source.
• Corroborating evidence linking the document to the alleged sender or recipient.

The threshold for authentication is relatively low, requiring only evidence capable of supporting a finding that the electronic document is authentic. 

Hearsay Considerations

Even if authenticated, electronic communications may be excluded if they constitute hearsay—statements made outside of court presented to prove the truth of their contents. However, exceptions exist under the “principled approach,” which allows hearsay if it meets two criteria:

1. Necessity: The evidence is necessary because the original speaker is unavailable or unable to testify.
2. Reliability: The evidence is trustworthy and credible.

In the Hockey Canada trial, the court found that these criteria were not sufficiently met, contributing to the text message’s inadmissibility.

Pretrial Motions and Digital Evidence

Before digital evidence can be admitted, several pretrial motions may be necessary:

1. Determining if the Message is a “Record”
Under Section 278.1 of the Criminal Code, a “record” is defined broadly to include any form of information that contains personal details for which there is a reasonable expectation of privacy. This can encompass medical, psychiatric, counselling, education, employment, child welfare, adoption and social services records, but also extends to any communication—such as a text message—that contains information of an intimate or highly personal nature. A document becomes a “record” if it includes content that is integral to the complainant’s overall physical, psychological, or emotional well-being. The Supreme Court of Canada has emphasized that the threshold for determining what qualifies as a record is relatively low, particularly in the context of sexual offence prosecutions, where complainants are entitled to enhanced privacy protections. For example, a text message that includes private discussions about the complainant’s sexual history, mental health, or feelings about the incident in question may fall within this category.

Once a document is classified as a record, a different legal regime applies. This triggers a mandatory vetting process before the material can be introduced as evidence. Defence counsel must bring a pretrial application, often under sections 278.92 to 278.94 of the Criminal Code, asking the court to rule on whether the record can be admitted. These sections were enacted to balance the accused’s constitutional right to make full answer and defence with the complainant’s rights to privacy, dignity, and equality. This framework ensures that sensitive information is not used in a way that perpetuates myths and stereotypes about sexual assault victims, such as the assumption that a person’s past sexual activity is relevant to the issue of consent. Therefore, if a text message qualifies as a record, it cannot be disclosed to the defence or admitted into evidence without prior judicial authorization, and this process includes notice to the complainant and an opportunity for them to participate in the hearing.

2. Motion for Admissibility of the Record

If the message is deemed a “record” within the meaning of Section 278.1 of the Criminal Code, a pretrial motion under Section 278.92 is typically required to determine whether the material can be admitted into evidence at trial. This motion is not a mere formality—it is a critical procedural safeguard designed to balance the competing rights of the complainant and the accused. Section 278.92 applies to records in the possession or control of the accused that the defence seeks to adduce, particularly in cases involving sexual offences. The legislation requires defence counsel to file a detailed written application outlining the proposed use of the record and the relevance of its contents.

During the admissibility hearing, the court will evaluate several key factors. These include:

• The relevance of the evidence: The judge must be satisfied that the contents of the record are meaningfully connected to an issue at trial. Relevance must be more than speculative—it must assist the trier of fact in determining a material issue, such as credibility, motive, or consent.
• The potential prejudice to the complainant’s privacy and dignity: The court must assess the extent to which admitting the record would intrude upon the complainant’s reasonable expectation of privacy. The judge considers whether the evidence is of such a sensitive nature that its admission would cause significant harm or embarrassment to the complainant, and whether that harm outweighs its probative value.
• The necessity of the evidence for the accused’s right to make a full answer and defence: This constitutional right, enshrined under section 7 of the Charter of Rights and Freedoms, allows the accused to challenge the Crown’s case effectively. If the information in the record is necessary to establish an alternative narrative or to rebut allegations, the court may be more inclined to admit it, provided privacy concerns are appropriately addressed.

Notably, the judge may impose conditions on the use of the evidence or redact portions of the document to minimize prejudice. The complainant has the right to appear and make submissions at the hearing, either in person or through counsel, to protect their privacy and ensure their voice is heard in the process.

Without a successful Section 278.92 application, the defence is strictly prohibited from introducing the document, or any derivative information obtained from it, at trial. This prohibition is broad: it includes not only reading the contents into the record but also questioning witnesses or making submissions that rely upon or hint at the material contained within the excluded document. Violating these rules could result in a mistrial or professional sanctions. As such, it is absolutely essential for defence counsel to bring the proper motion and obtain judicial approval before attempting to use a text message or other digital communication that qualifies as a record under the Criminal Code.

3. Accessing Text Messages Held by the Crown

If the Crown possesses text messages or other electronic communications that have not been disclosed to the defence, and those messages fall within the definition of “records” as outlined in Section 278.1 of the Criminal Code, the defence may bring an application for third-party record disclosure under Section 278.3. This is particularly relevant in sexual offence prosecutions, where the Crown may have obtained private communications involving the complainant—such as messages exchanged with other witnesses or parties—through police investigation, search warrants, or voluntary production.

Under Section 278.3, the defence must first demonstrate that the text messages are “likely relevant” to an issue at trial or to the competence of a witness to testify. This threshold is not exceedingly high, but it requires more than speculation. The defence must provide sufficient detail in the application to persuade the judge that there is a reasonable possibility the records could materially impact the outcome of the trial. Examples of such relevance could include messages that contradict the complainant’s version of events, show prior inconsistent statements, reveal potential bias or motive to fabricate, or shed light on the nature of the relationship between the complainant and the accused.

Once the application is filed, the judge may review the records in camera—that is, privately in chambers—to determine whether they should be disclosed to the defence. In making this determination, the judge will weigh several factors outlined in Section 278.5 of the Criminal Code, including:

• The right of the accused to make full answer and defence;
• The privacy interests and dignity of the complainant;
• The potential prejudice to the administration of justice;
• The societal interest in encouraging reporting and prosecution of sexual offences;
• The necessity of the information in ensuring trial fairness.

If the judge finds that the records are likely relevant and necessary in the interests of justice, they may order that some or all of the text messages be disclosed to the defence, potentially with conditions such as redactions or limited use in court. The complainant also has a right to participate in this process and may make submissions opposing the release of the records, with the assistance of independent legal counsel if desired.

Importantly, without judicial authorization, the defence is not permitted to rely on or refer to these records at trial—even if the Crown has them in its possession. This applies regardless of whether the defence independently becomes aware of the contents. Attempting to use the material without following the proper legal process can result in serious consequences, including exclusion of the evidence, mistrial, or professional discipline.

Thus, Section 278.3 serves as a critical gateway for ensuring that both privacy rights and trial fairness are respected in cases involving sensitive digital communications. Defence counsel must be diligent in identifying potentially relevant records held by the Crown and must follow the structured procedural route to obtain access, always bearing in mind the delicate balance between the rights of the accused and the interests of complainants in maintaining control over their private information.

Implications for Future Cases

The exclusion of Howden’s text message in the Hockey Canada trial underscores several key considerations for legal practitioners:

• Thorough Authentication: Ensure that digital evidence is properly authenticated through reliable means.
• Understanding Hearsay Exceptions: Be prepared to argue for the necessity and reliability of digital statements under the principled approach.
• Navigating Privacy Protections: Recognize when digital communications qualify as records and follow the appropriate procedures to admit them.

As digital communications become increasingly central in criminal cases, understanding the legal standards for their admissibility is crucial. The Hockey Canada trial serves as a reminder of the importance of meticulous preparation and adherence to evidentiary rules when dealing with digital evidence.

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