Digital Evidence, 2nd Edition
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Digital Evidence, 2nd Edition

Gerald Chan, Susan Magotiaux
General Editor(s): Brian H. Greenspan, Vincenzo Rondinelli
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As digital evidence becomes a routine component in every criminal case, all practitioners must keep pace with the constant changes to the law and practice of digital evidence in Canada. By addressing both current and emerging challenges in the field, Digital Evidence, 2nd Edition provides a clear, comprehensive, and up-to-date examination of digital evidence in the context of criminal law. Authors Gerald Chan and Justice Susan Magotiaux clarify key legal principles and offer practical suggestions for criminal practitioners handling and utilizing digital evidence through every stage of a criminal proceeding.

This bestseller is designed to equip criminal practitioners with a solid understanding of the procedural, tactical, and strategic elements of gathering, admitting, and presenting digital evidence. It addresses privacy rights, private communications, search and seizure of digital data, disclosure of digital evidence, authentication and admissibility of digital evidence, digital presentations, and more. This handbook also discusses the practical constraints that affect Crown and defence counsel, including delay, cost, undertakings, and disclosure with an in-custody accused.

This edition has been updated to reflect all recent digital evidence cases from the Supreme Court of Canada including R v SH, R v CB, and R v Bridgeman. In addition, it explores the ways in which cases R v Mills and R v Shergill impact search and seizure powers for law enforcement. This handbook also features discussion on R v Marakah, a landmark decision on the search and seizure of text messages, and more broadly, privacy in the digital age.

This text is Volume 5 in Emond’s Criminal Law Series.

 

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  • ISBN/ISSN: 978-1-77255-676-6
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ISBN
978-1-77255-676-6
Page Count
334
Publisher
Emond Publishing
Publication Date
December 2021
Status
Available
Subjects
Criminal Law and Procedure; Criminal Law Series; Evidence and Investigation
Tags
Practice Canadian Law

  • A foreword by the Honourable Thomas A. Cromwell.

  • “Questions to Consider” sections outlining key factors for framing arguments on digital evidence access and admissibility.

  • Sample disclosure requests in digital evidence cases.

  • Checklists detailing various considerations for counsel when presenting evidence and submissions in a digital format.

  • A chapter discussing the procedural constraints on disclosure from both Crown and defence perspectives.

  • A summary of law enforcement’s search and seizure powers for accessing digital data in the hands of third parties.

  • Discussion on the limits of social media evidence.

  • Relevant excerpts from the Criminal Code and the Canada Evidence Act.

Part I: Search and Seizure 

1. Reasonable Expectation of Privacy in Digital Data 
2. Search of Devices  
3. Accessing Digital Data
4. Private Communications 

Part II: Disclosure 

5. Disclosure of Digital Data 
6. Disclosure in Internet Child Exploitation Cases 
7. Practical Constraints on Crown and Defence 

Part III: Use of Evidence 

8. Admissibility 
9. Probative Value 
10. Courtroom Presentation 

Table of Cases 
Index 

Chapter 1: Reasonable Expectation of Privacy in Digital Data

“For anyone doing trials or hearings in the digital age, Digital Evidence is an indispensable aid. [...] Whether a proceeding is in the criminal, regulatory or civil realm, more and more of the evidence is in digital format: texts, social media postings, electronic copies of videos and photos, medical records, Blackberry PINs—the list goes on. But even as the number of documents in a typical proceeding has increased exponentially, counsel’s obligations to marshal the evidence, to address issues of privilege, authenticity, admissibility and relevance, and to assess the probative value of the evidence has not been altered. Not only are counsel challenged to identify, gather and present a greater number of documents than ever before, but the evidence is also increasingly in unfamiliar formats. Where these formats are digital, Chan and Magotiaux have counsel’s back.”

Read the full review here.

—Lonny J. Rosen, CS
Excerpt from The Advocates' Journal, Fall 2018

“The authors of Digital Evidence have achieved a remarkable feat: they have successfully married the practical and the theoretical in this difficult and emerging area of the law. With procedural guidance, practical tips and substantive law from the early investigative stage to the courtroom steps, this book is an invaluable reference for any practitioner. The even-handed approach of the authors provides a true how-to guide to digital evidence for either Crown or defence counsel.”

—Cameron Gunn, QC

“The book is, frankly, a much-needed resource for practitioners who appear in courtrooms on criminal matters. Given the slow pace of technological advances in the criminal courts, lawyers are often tasked with the role of educating judges with respect to novel issues in digital evidence. And when the issue may be novel to the lawyer themselves, it is critical to know what questions to ask.”

Read the full review here.

—Anne-Marie McElroy, Criminal Defence Lawyer
Excerpt from McElroy Blog


*Please note that all testimonials were received after review of Digital Evidence: A Practitioner's Handbook, 1st Edition.


“The authors of Digital Evidence have achieved a remarkable feat: they have successfully married the practical and the theoretical in this difficult and emerging area of the law. With procedural guidance, practical tips and substantive law from the early investigative stage to the courtroom steps, this book is an invaluable reference for any practitioner.”

—Cameron Gunn, QC




“Chan and Magotiaux’s Digital Evidence: A Practitioner’s Handbook starts the process of bringing order to the tumult that the law in this field has become. The book offers busy practitioners a well-organized, easily readable, and very accessible primer on a range of topics under the general rubric of digital evidence. It should be the first book consulted when trying to work through an unfamiliar issue related to this category of evidence.”

—Scott Hutchison, Henein Hutchison LLP



 
 

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