Technology

• Author: Eric V. Gottardi/Jennifer A. MacLellan/Michael Lacy/Robin Flumerfelt
• Pages: 221-246

221

9

Technology

I. Electronic Devices ........................................ 222

A. Data Retrieval ...................................... 222

B. Experts Are Not Required to Explain Common Technology ... 224

C. Forensic Extraction of Data ............................ 224

D. Circumstances Where an Expert Is Required .............. 226

E. Concerns About Bias ................................. 230

II. Cellular Communication Networks ........................... 231

A. Call Detail Records .................................. 232

B. Experts Are Not Required to Explain How Cellular

NetworksWork ..................................... 233

C. Missing Elements from Call Detail Records .............. 234

D. Design and Operation of Cellular Communication

Networks .......................................... 235

III. Forensic Video Analysis .................................... 239

A. Authentication ...................................... 240

B. The Use of the Video to the Trier of Fact ................. 243

C. Expert Video Comparative Analysis ..................... 245

© [2022] Emond Montgomery Publications. All Rights Reserved.

222 Part II Specific Types of Expert Evidence

I. Electronic Devices

Many people communicate using electronic devices on a regular and daily basis, both

in their personal lives and for employment purposes. Whether through SMS texts,

application messaging (iMessage, WeChat, Facebook Messenger, etc.), email com-

munications, or otherwise, the contents of these communications may be directly rel-

evant to a criminal case or may be important to credibility or other issues that arise at

trial. Global positioning data that might be stored on an electronic device (through the

use of a map application, geotagged photograph, or otherwise) can also be relevant in

placing the phone at a particular place at a particular time.

These devices are also vast electronic warehouses where all manner of informationis

stored and maintained. As AD Gold has noted, the nature of electronic technology

issuch that mobile phones, computers, and other electronic devices are “fastidious

record keepers.”1 An electronic device may store communication histories (text logs

and content of text messages), telephone logs, emails, Internet search histories, photo-

graphs, documents, and details of the use of any program or application on the device:

Cell phones in particular retain records of messages, both drafted and sent, calls made,

and files transmitted and received. The ability of a cell phone to generate an exhaustive

record of seemingly trivial aspects of a person’s day-to-day life means that it contains a

far more thorough picture of what that person thought, said and did than any conven-

tional form of data storage ever could.2

Information may be deliberately stored on an electronic device, passively reside on

the device, or remain on the electronic device even after the user attempts to delete

it—and believes that it has been deleted.

The proliferation of securing and presenting digital evidence in criminal cases can-

not be overstated, and being familiar with issues of privacy, admissibility, authenticity,

and accuracy in this context is necessary to competently present and defend cases. A

full consideration of these topics is beyond the scope of this book, but can be found in

another book in this series, Digital Evidence, 2nd Edition , co-authored by Gerald Chan

and Justice Susan Magotiaux. The introduction of evidence emanating fro m electronic

devices, however, also engages the question of whether and when expert evidence is

necessary to introduce such evidence.

A. Data Retrieval

It is not always necessary to retain an expert or someone with technical expertise

to retrieve data from an electronic device. There are no statutory or common law

1 AD Gold, “Applying Section 8 in the Digital World: Seizures and Searches,” prepared for the

7th Annual Six-Minute Criminal Defence Lawyer (June 9, 2007) at para 6.

2 R v Fearon, 2014 SCC 77 at para 129.

© [2022] Emond Montgomery Publications. All Rights Reserved.