Canada: Impact Of Social Media Evidence In Litigation

It is undeniable that social media has transformed the way individuals interact with one another. In 2018, 64% of Canadians had a social media profile, 50% of whom were registered on more than one social media site.1 Ontario has the highest number of social media users in Canada with 67% of residents using social media platforms.2 Unsurprisingly, the prevalence of social media has invited unprecedented challenges which the courts and legislature have had to tackle.

It is simply a fact that information we input into social media platforms becomes indefinitely stored and available for future access. We have come a long way from only admitting an original document as evidence to allowing Facebook messages to be used in criminal and civil trials. Both the Canada Evidence Act  (CEA) and the Ontario Evidence Act (OEA) define what an electronic record is and the standards of integrity needed for admissibility. Section 34.1(1) of the OEA  defines an electronic record as "...data that is recorded or stored on any medium in or by a computer system or other similar device, that can be read or perceived by a person or a computer system".3 Electronic records are documentary evidence, which purport to rely on their contents to substantiate the submitting party's assertions.4 Generally, Canadian courts have been accepting of electronic evidence such as photographs and online messages to prove or disprove facts.5

Social media evidence comes into play in two respects in litigation: the discovery process and admission at trial. The Ontario Rules of Civil Procedure  state that "every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed.6" The Rules further provide that a court may "...order the disclosure or production for inspection of [a] document..." if there is some evidence that it has been omitted and privilege has not been claimed.7  In Leduc v. Roman, Justice Brown reasoned that a private social media profile setting would not shield the social media account user from relevant disclosure.8 It follows that a court could order the disclosure or production for inspection of content on a social media user's profile even if that content was posted to a private account. It is incumbent on counsel to explain the disclosure requirement to their clients, including informing them that information posted on their Facebook page is fair game.9

It should be noted that even if electronic records have been disclosed, the evidence still needs to meet the threshold for relevancy and reliability to be admissible. Disclosure or production of a document should not be taken as an admission of relevance or admissibility.10 For an electronic record to be deemed relevant at trial, the ordinary analysis of its probative value outweighing its prejudicial effect must take place. The record must also be deemed reliable.11

First, a party introducing the electronic record bears the onus of showing its authenticity.12 You need to be able to prove that the electronic record is what you claim it to be.13 This can be achieved through an admission from the opposing party or by cross-examining a witness.14

Second, the best evidence rule needs to be satisfied by showing the integrity of the electronic record.15 The best evidence rule had to be adapted to the electronic age and now concerns the reliability of copies, duplicates and substitutes of an original record.16 The integrity of the electronic record will depend on how accurately information was recorded and maintained.17 Pursuant to Section 7(a) of the OEA, in the absence of evidence to the contrary, there is a presumption of integrity if the computer system that stores the electronic record is operating properly. Practically, if it is shown that a computer system has produced or retrieved information in a manner that a functioning computer would, that will suffice to show that a computer has been operating properly.18

In R v. Andalib-Goortani the Court tackled whether to admit a photo found on the internet showing a police officer hitting a woman with his baton. The Crown sought to admit the photograph as evidence of assault; however, experts testifying could not be sure of the integrity of the photograph. The photo was widely circulated on the internet and, as a result, its metadata which shows the "type of camera, focal length, lens type" was missing.19 An expert concluded that the removal of the metadata resulted "in many uncertainties about the provenance of this photograph and makes it difficult to draw conclusions."20 Ultimately, the Crown was unable to convince the Court that the image had not been tampered with. When trying to admit information circulated on the internet, the moving party has to show that the copied information has not been altered during the process. This exercise will likely require the assistance of an expert witness.

Social media has become an integral part of our lives and has changed the ways in which we communicate and share our personal experiences. As social media platforms take advantage of new technologies, it will be interesting to see how the courts interpret the use of this evidence.

Footnotes

1 Hannah Clark (2018), "Canadian Social Media Stats (Updated 2018)," Sherpa Marketing, https://www.sherpamarketing.ca/canadian-social-media-stats-updated-2018-471

2 Ibid

3 Evidence Act, RSO 1990, c E.23, s 34.1(1).

4 Graham Underwood & Jonathon Penner, Electronic Evidence in Canada (Carswell, 2010), Release 2.

5 Mason, Stephen (et al), Electronic Evidence, 2012, (Reed Elsevier (UK) Ltd.)(Robert J. Currie & Steve Coughlan, Chapter 9: Canada) at p. 293.

6 Rules of Civil Procedure, RRO 1990, Reg 194, s 30.02.

7 Ibid, s 30.06(c).

8 [2009] OJ No 681 (QL), at para 32

9 Ibid, at para 28.

10 Rules of Civil Procedure, RRO 1990, Reg 194, s 30.05.

11 13 CR-ART 140, Criminal Reports (Articles), 2014.

12 Supra, note 3 at s. 34.1(4).

13 Ibid.

14 Bryan Finlay, Q.C., Marie-Andree Vermette and Michael Statham, Electronic Documents: Records Management, e-Discovery and Trial (Canada Law Book), No. 4, December 2012 at s. 7-50.1.

15 Supra note 3 at s. 34.1(5.1).

16 Chase, Ken, Electronic Records as Documentary Evidence (Canadian Journal of Law and Technology) 27 November 2007, at p.142.

17 David Wotherspoon and Alex Cameron, Electronic Evidence and E-Discovery, (General Editor: Sunny Handa, April 2010) at p. 144.

18 David M. Paciocco, (2015), "Proof and Progress: Coping with the Law of Evidence in a Technological Age", 11 C.J.L.T., at p. 193.

19 R v. Andalib-Goortani, 2016 ONSC 575 at para 11.

20 Ibid, at para 16.

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