Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m M a y 2 0 1 4 53 computer science professor at the University of Waterloo. "e computer that you use crashes, the phone that you use crashes — society is used to soware being defective. So if you are in the courtroom and you have a piece of evidence and it is created by soware, you have to make sure that it is performing," says Fischmeister. When courts are deciding on the reliability of digital evi- dence, it is important "to avoid drawing the same inferences that might be more appropriate" with traditional evidence, says Michael Mulligan, a defence lawyer in Victoria, B.C., who has training in computer forensics. "ere will oen be vast quanti- ties of data stored on devices that a person physically possessing the device would be unaware of and incapable of accessing by ordinary means," says Mulligan. "Oen this will amount to an analysis of circumstantial evidence such as time data that can, by other means, be tied to a particular person," adds Mulligan, who cautions against simply relying on user account names or the physical location of a device. In the midst of rapid technological change and staggering in- creases in the amount of stored electronic data, the case law in this area in Canada and the U.S. is oen still preoccupied with the authentication and reliability of sometimes juvenile postings on social media. In Parker v. State of Delaware, the Delaware Supreme Court compared the "Maryland approach" to social media posts and the "Texas approach" to the evidence. Facebook postings related to a physical confrontation between two women over a mutual love interest were admitted by the Delaware court in its deci- sion issued in February. It preferred the decisions of the courts in Texas that "any type" of circumstantial evidence a jury could "reasonably find" were authentic, was sufficient to admit the Facebook comments. e test in Maryland requires significant computer forensic evidence as well as information obtained from the social networking site. A Court of Queen's Bench judge in New Brunswick concluded earlier this year in R. v. Nde Soh that screen captures of Facebook conversations and the testi- mony of the complainant was sufficient to admit the postings as electronic documents and as an exception to the hearsay rule. As there are more challenges to social media evidence, es- pecially in civil litigation and the exploding e-discovery field, a simple screen grab and testimony in court may not suffice. John Patzakis, a lawyer and chief executive officer of X1 Discovery Inc. in Pasadena, Calif., says it is essential for there to be "best practices" around searching for, collecting, and preserving so- cial media evidence. Every posting on Twitter for example has several unique pieces of metadata information associated with it. "Together this tells a very compelling story about the evidence itself," says Patzakis, whose company's clients in Canada include law enforcement agencies. Simple printouts of computer screens or social media conversations are no more than a snapshot. "So much metadata will be missing from a screen shot," he explains. Police are also becoming more aware of how to make use of social media evidence for criminal investigations, says Patzakis, who cites the Stanley Cup riots in Vancouver in 2011 as an ex- ample. e circumstantial evidence, such as metadata, around the social media evidence is what makes it easier to authenticate for a court, he adds. Ultimately, whether it is a high-profile case involving the seizure of a mobile device or an obscure proceeding in a local courtroom, the legal tests still involve the application of the traditional rules of evidence, says Graham Underwood, co- author of Electronic Evidence in Canada and a Crown counsel with the civil branch of the B.C. Ministry of Justice. e type of supporting evidence needed to authenticate digital infor- mation depends on its purpose in the court proceeding. "It is very contextual. You have to look at what this information is going to be used for. Why is it being tendered?" asks Under- wood. "the presumption of integrity should not be automatic. the further you are from the original source that created the document, the more problems you have." MICHAEL NAuGHtoN, thomas & Naughton PC Centre for International Governance Innovation Oonagh Fitzgerald, BFA, LLB, LLM, MBA, SJD, Member of the Law Society of Upper Canada. The Centre for International Governance Innovation (CIGI) is pleased to announce the appointment of Oonagh Fitzgerald as Director of the International Law Research Program. Ms. Fitzgerald has extensive experience as a senior executive in the federal government. Since 2011, she has been National Security Coordinator for the Department of Justice. She has led the provision of legal services at the Department of National Defence, Public Law Sector of Justice, Privy Council Office, and the Department of Human Resources Development Canada, and served as Special Advisor for International Law and Director of International Law at the Department of Justice. She began her career at the Law Reform Commission of Canada, the Bureau of Competition Policy and the Immigration Appeal Board. Based in Waterloo, CIGI is an independent, non-partisan think tank on international governance. The International Law Research Program, with up to 19 research fellows and 20 scholarships, is jointly funded by CIGI and Ontario's Ministry of Training, Colleges and Universities. ntitled-2 1 14-04-10 12:09 PM

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