“Freedom Convoy” | Court overwhelmed by social media evidence

(Ottawa) When thousands of demonstrators occupied the streets around Parliament Hill in Ottawa, in February 2022, several of them immortalized the event by taking photos or filming using their cell phones .

Some then posted the images on social media.

And more than a year later, lawyers are trying to use those digital messages in a court designed for the analog era.

The second week of the trial of two of the organizers of the Ottawa protests has just ended. The proceedings were slowed down by the presentation of evidence from social media, both legally and practically.

This disconnect reflects the problems experienced by trials taking place in the age of social media.

For example, during the trial of Tamara Lich and Chris Barber last week, several wires could be seen on the floor of the courtroom built in 1986. They were connected to large television screens installed near the laptops. lawyers who attempted to present Facebook messages or videos posted on TikTok. Judge Heather Perkins-McVey even had to order an even larger monitor to watch more than 90 pieces of evidence.

Such a volume of evidence from social media is not typical, although Osgoode Hall University law professor Lisa Dufraimont says it is a growing issue for the courts. . Digital communication is gaining importance.

For the Lich-Barber trial, gathering the videos was the first step. We had to examine them all to see if they were relevant to the case. This required a lot of time for prosecutors and lawyers.

The Crown had to determine what it intended to present in court and provide the same documentary material to the Defense.

“They don’t tell you what’s important and what’s not. It takes us time to review everything,” says Éric Granger, one of Tamara Lich’s lawyers, about the digital evidence that is generally presented before a judge.

The presentation of all this digital evidence risks derailing all the procedures, deplores Judge Perkins-McVey.

During the first week of the trial, Diane Magas, Chris Barber’s lawyer, reduced the large number of discussions coming from her client’s cell phone to present only those that will be used in court. But, a few days later, the lawyer in turn placed two large binders containing printed messages on a table set up in front of the judge, forcing her to suspend the hearing.

The rules for accepting content from social media were written long before digital documents existed.

“The courts prefer to hear a witness in the form of a living person placed behind the witness box, who can recount what he saw,” says Mr.^e Granger.

According to him, social media is “taking the courts into a rather complicated part of the law” regarding hearsay or second-hand evidence. Additionally, screenshots present another problem: are they authentic or have they been altered?

When evidence is admissible, lawyers and prosecutors must ensure that everyone – particularly the judge – understands it well.

“To understand how a platform works, a judge may need to have it explained to him by a witness,” explains Professor Dufraimont.

And making a generation of judges, for whom certain aspects of the Internet remain an enigma, understand how it works may represent a greater challenge, admits M.^e Granger.

“It’s a balance between the need to make that clear and not insult the judge. »