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w w w . c a n a d i a n l a w y e r m a g . c o m S E P T E M B E R 2 0 1 8 57 Social media evidence also arises in the discovery process and admission at trial, notes Theodore Madison, a part- ner at Miller Thomson LLP in London, Ont., whose practice includes insurance defence. For discovery, he says, a cli- ent's list of social media sites should be included in Schedule A documentation for discovery, defined by the Law Soci- ety of Ontario as "documents in the cli- ent's possession, control or power that the client does not object to producing for inspection." As for admissibility of social media evidence, "what the court's really con- cerned about is making sure that the electronic data hasn't been manipu- lated," says Madison. In one highly pub- licized case decided by the Ontario Superior Court of Justice in 2014, R. v. Andalib-Goortani, the judge rejected the Crown's application for evidentiary use of a digital photograph that was posted anonymously to a website at the trial of a police officer charged with assault during protests against the 2010 G20 summit in Toronto. "The metadata was missing, so the judge thought [the photograph] could have been tampered with," Madison explains. "The court is very concerned about tampering with information, and it's incumbent on the party at trial to show it hasn't been tampered with and is reliable." But Stockwoods LLP litigator Edward Marrocco believes that today that photo might have been accepted into evidence. "Case law from 2014 onwards would suggest that a Facebook printout is an electronic document," he says. "As long as you have someone with first-hand knowledge of where that information came from, you're really getting close to using it with- out needing an expert," adds Marrocco, who co-authored "Using Social Media Evidence in Civil and Administrative Proceedings" for the Law Society of Ontario Social Media and Litigation Course in 2018. "There's a wealth of evidence out there [and] it would be counterproduc- tive for the courts not to make use of this kind of evidence." If the admissibil- ity of the photo at the Andalib-Goor- tani trial were being considered again today, and absent positive evidence that the photo had been altered to change representation, "then yes, it would go in," he says. Beyond discovery and evidentiary admission, though, is the profound change that social media has wrought in society — and which can at least assist in dumping individuals into legal hot water. "People who've never had access to an audience before suddenly have access to one," says Bernstein. Social media "enhances freedom of expres- sion, but whereas the traditional media has some pretty clear understanding of what they should and shouldn't pub- lish, people with Facebook accounts have no idea what constitutes the pub- lication of trade secrets," among other things, he says. L E G A L R E P O R T © 2018 Thomson Reuters Canada Limited 00251XG-A92440-CM AVAILABLE RISK-FREE FOR 30 DAYS Online: store.thomsonreuters.ca Call Toll-Free: 1-800-387-5164 | In Toronto: 416-609-3800 Employ evidence with more confi dence, strategy, and insight New Edition – Now also available as an eBook on Thomson Reuters ProView® Watt's Manual of Criminal Evidence 2018 The Honourable Mr. Justice David Watt Build stronger cases, determine the most strategic presentation of your evidence, avoid common pitfalls that can undermine your evidence, make effective use of evidentiary objections, and much more. In this easy-to-use handbook by a renowned criminal law authority, you'll fi nd a well-organized synthesis of all the statute and common law evidence material you need, no matter how complex the case. New in this edition The 2018 edition has been completely updated, featuring cases such as: • R. v. Durham Regional Crime Stoppers Inc. (SCC) • R. v. Paterson (SCC) • R. v. Alex (SCC) • R. v. Bradshaw (SCC) • R. v. Abbey (ONCA) • R. v. Barton (ABCA) • R. v. Douglas (MBCA) • R. v. Laing (NSCA) • R. v. Bahamonde (BCCA) • R. v. Dunford (SKCA) • R. c. Turbide (QCCA) • R. v. H. (R.A.) (PECA) Print + ProView Order # L7798- 8524BE-65203 $244 Hardcover + eBook June 2018 approx. 1400 pages ProView only A09419-18ON-65203 $203 Print only L7798-8524-65203 $203 Annual volumes supplied on standing order subscription Multiple copy discounts available 2 supplements per year $40-$45 per supplement Supplements invoiced separately Shipping and handling are extra. Price(s) subject to change without notice and subject to applicable taxes. Visit store.thomsonreuters.ca/proview to learn more and for the complete list of titles available on ProView. ntitled-3 1 2018-08-16 11:41 AM

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