Social media luddites and the admissibility of evidence

By Justin Ling Web Only

Social media luddites and the admissibility of evidence


Social media has become a ubiquitous reality. But that doesn’t mean that everyone is on quite the same footing when it comes to Facebook, Twitter, Instagram, and the like.

Speaking to a conference of tech professionals and lawyers at Osgoode Hall Law School last week, Ontario Superior Court Justice Frances Kiteley offered some cautionary words, warning social media-savvy lawyers that many judges “don’t come with the same skills, knowledge, or expertise as those of you coming into the courtroom.”

“Do not assume that they know what you know,” Kiteley warned.

Obviously, not all members of the Canadian judiciary are social media luddites — from the judge who banned a violent ex-boyfriend from social media this month after a Snapchat post set him off on a violent attack, to the justice who took a very understanding view of one mother’s online dating proclivities in a family law case last year.

Still, a 2013 survey from the Canadian Centre for Court Technology found that less than half of all members of the judiciary used social media at all — with a chunk of those reporting that they use it in a professional context.

That means that half of the bench doesn’t engage with a platform that is becoming increasingly ubiquitous in their courtrooms, while, for the other half, there are “few specific rules or guidelines in Canada dealing with the use of social media,” according to the report. Just a fraction of those who answered the 2013 survey reported their social media activity to their superiors.

Kiteley’s panel — featuring Cst. Christopher MacDonald of the Peel Regional Police; Scott Fenton, of Fenton, Smith Barristers; and Steven Johnston, an Alberta Crown prosecutor — noted that while some U.S. jurisdictions have actually formalized rules and guidelines on how judges and lawyers ought to interact on social media (i.e. is it improper for a judge to befriend a government prosecutor on Facebook?) Canadian courts have been slow on the uptake.

As a result, there are bound to be problems.

The panel gave specific mention to R. v. Ghaleenovee — an Ontario superior court case, sent to retrial on appeal, where a judge decided to proactively consult an image Google Street View. Though he hadn’t put it to the accused, the judge’s found that the image nevertheless undermined his credibility. The Superior Court found that in doing so he compromised the fairness of the trial.

Admissibility of social media as evidence isn’t just a concern for disconnected judges — the social media presence of witnesses is becoming increasingly a day-to-day concern.

Johnston gave specific caution to cops and Crowns to write in social media accounts to search warrants. Case law and precedence are still catching up with the reality of text messaging and various social media platforms. Being safe, rather than sorry, seems prudent.

“You know that person uses Facebook. Write that into your warrant,” Johnston said. “Full frank and fair isn’t going to hurt you, at the end of the day, it’s only going to help you.”

Fenton added that Facebook “is a goldmine of evidence in criminal cases” but that there’s been no real higher court pronouncement on what constitutes a reasonable social media search.

MacDonald noted that it’s common in his criminal investigations to use “geonetting” — searching for all public social media posts in the radius around a crime scene — to glean information.

Given that, it’s often up to who happens to be sitting behind the bench.

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