“You’ve heard the phrase ‘everything you say can be used against you in court,’” Greater Toronto Area sexual defence lawyer Jeff Mass recently told one of his sexual assault clients. “Well,” the managing partner of the GTA’s Mass Tsang law firm continued, “anything you post on social media can also be used against you in court. Your social media feeds and online messages are criminal evidence.”
Jeff’s co-managing Mass Tsang partner, Robbie Tsang , notes that social media is a “double-edged sword that sometimes aids the defence, especially in cases hinging on the issue of consent. In fact, because so many he said/she said cases hinge on credibility, social media evidence has become instrumental in resolving them.”
To help you better understand the admissibility of social media evidence in Canadian courts, we’ve detailed the legal aspects of the issue and answered some of the most frequently asked questions we hear from our clients about the topic.
In the context of sexual assault cases, social media content qualifies as digital or electronic evidence and includes posts and direct messages on Facebook, Instagram, Snapchat, and similar platforms, as well as text messaging. Its admissibility is governed by the Canada Evidence Act , Sections 276 and 278.1 through 278.91 of the Criminal Code, and common law rules covering relevance, reliability, hearsay, and prejudice. At a minimum, social media evidence must meet the following evidentiary thresholds:
The Criminal Code imposes additional requirements for private social media messages or postings involving the victim. These requirements are typically addressed in a hearing in which the judge seeks to balance privacy, equality, and fair-trial rights. Evidence of the victim’s sexual history is presumptively inadmissible, though there are narrow exceptions.
Crown prosecutors typically use social media evidence to support the victim’s account of the assault and help prove elements of it — such as lack of consent — beyond a reasonable doubt. This includes social media evidence that can:
Sexual assault criminal defence lawyers strive to use social media evidence to raise reasonable doubts about the victim’s account of the assault, challenge their credibility, and refute the claimed lack of consent. Common uses of defensive social media evidence include that which:
A: Yes. Text messages qualify as “electronic documents under Sections 31.1 to 31.8 of the Canada Evidence Act.
A: Yes. Police can use advanced digital forensic tools to perform data extractions in devices seized under a search warrant. They can often find deleted messages in unallocated space or file system remnants, depending on the age of the data, type of device, and whether the device was cleared by a factory reset or otherwise wiped.
Police can also obtain a court order to compel social media companies to provide data, with success dependent on how long the specific platform retains deleted data.
A: Yes. While most social media messaging and posts help indirectly support or refute the alleged lack of consent, some have played a more direct role. For example, Instagram messages in a sexual assault trial held in 2021 helped prove consent by showing “mutual and enthusiastic interest” in engaging in sexual activities.
A: Yes, as long as they are authenticated by metadata and/or digital forensics.
A: The police and or Crown prosecutors must secure a search warrant or production order to secure private social media messages if access is not granted by consent. Criminal defendants can petition the court to grant them access to the victim’s private social media messages by submitting a Criminal Code Section 278.3 application to the judge. The application must show that the specific messages are relevant to the case and that their probative value outweighs any infringement of the victim’s rights.
A: Social media messaging and posts may affect the credibility of the victim or the accused by exposing inconsistencies between their testimony and what they’ve posted on their social media.
A: No. Deleting your digital footprint on social media could subject you to a Criminal Code Section 139 obstruction of justice charge.
With over two decades of sexual assault criminal defence work in the Greater Toronto Area and hundreds of successful outcomes, the skilled lawyers at Mass Tsang can help you strategize an effective defence against your sexual assault charges. To learn more, schedule a free consultation by contacting us today.
