Text messaging is an increasingly popular method of communication.
Even though a text may take less than 30-seconds to write and they are often intended to be causal communications as opposed to letters or e-mails, they are still a record of our written communications with one and other.
In a recent family law matter from Saskatchewan, the court was asked to consider the admissibility of a mother’s text messages with her child’s father in the context of a dispute about their parenting schedule.
The texts were downloaded from the mother’s phone to her computer using a computer application called “Decipher Text”. The computer application then generated a print out of the parties text messages which “appears as many single spaced tightly grouped lines with a code at the beginning of each line and what appears to be text message communications placed at the end of the code” (at para. 7). Since the document is a printout of an electronic record, the court considered whether the electronic record meets the requirements of the Saskatchewan Evidence Act. Ultimately, the printout was found to be inadmissible because the mother failed to introduce affidavit evidence about how the printout accurately and completely depicts the parties’ communications as well as how “Decipher Text” actually works.
The crux of the problem was best described at paragraph 19:
Here the link between the smart phone text message and the form of evidence filed to prove that text message – the Decipher Text printout – is lacking. The intermediary here is a printout that is not a screen shot but is instead a computer rendering of some sort, filtered and formatted through the Decipher Text computer program/application. This intermediary program, or application, is not explained in any of the affidavits nor so commonly understood presently that it is possible to take judicial notice of what happens between the electronic record, here being the text messages, reaching the smart phone and that subsequently being converted into the printout attached. Thus a gap exists regarding authentication here.
In Ontario, section 34.1 of the Evidence Act, RSO 1990, c E. 23 governs the admissibility of electronic records in so far as it relates to the issue of authentication and best evidence rule. Like Saskatchewan, section 34.1(4) provides that the person seeking to introduce an electronic record has the burden of proving its authenticity.
Sylvestre v. Sylvestre, 2018 SKQB 105 (link here), is well worth the read for any litigator in today’s day and age. It is also well worth having in your arsenal of case law regarding how judicial notice may be given to other ways of presenting electronic evidence such as the screenshot.
Thanks for reading!
One quality often overlooked in this frantic information era of texts, tweets, and instagrams is clarity. Our communications and responses are faster than ever, and you’ve likely seen first-hand how clarity can suffer. In a perfect world, we’d have a friend by our side objectively reviewing each communication and setting us straight when our message wasn’t clear.
“Don’t put it that way – it sounds like you’re angry,” or “It’s not clear where you’re meeting, better spell it out.”
Of course, there is no objective friend by our side 24/7. And in our daily back and forth with friends and family, the lack of an objective voice usually doesn’t matter. If there is confusion, it’s easily resolved by a follow-up message. We may live inside our own little bottles, but reading the label “right” the first time doesn’t matter that much in our day-to-day living.
Clarity in estate planning – get outside the bottle
But what about communications that can have a more profound impact, like our estate plan, where we detail our final wishes for end-of-life care and the distribution of our assets? There are few tasks in which clarity is more important. You can’t send a final “clarifying” text from the grave, so you have one chance to get it right. And if you don’t have objective, outside advice, it’s remarkably easy to get it wrong. What is crystal clear to you may not be to others.
The recent case of a dying Florida man is an excellent example. The 70-year-old man was found intoxicated and unconscious outside of his nursing home. When doctors took off his shirt, they found the words “Do not resuscitate” tattooed on his chest, with a tattooed signature underneath:
While the message was quite clear on its face, doctors faced a dilemma. They had an unconscious, dying man in front of them, with a tattoo that told them to take no further action. Was this what the patient truly wanted? Was it a legally valid instruction, or an ironic joke? Doctors were aware of a case reported in a medical journal where a man had “DNR” tattooed on his chest and was admitted to hospital. When doctors saw the tattoo, they asked him if that was indeed his wish, and he said it wasn’t at all – he had lost a bet in a poker game and the tattoo was the result.
So, when it comes to your own planning, make clarity a priority. Objective, professional advice can ensure that your “message to the world” about your estate will both reflect your wishes and be read accurately by others. Take a look at the four-step approach taken by Toronto firm Creaghan McConnell Group in helping Canada’s leading families preserve and pass on wealth. Their step number one? Family clarity.
Make it your priority too – and take a pass on the tattoos!
Thank you for reading,