June 8, 2023
We live in an information age where knowledge is readily accessible. If we want to know something we just Google it or ask Siri.
THE ISSUE
But is this good enough for evidence in the Superior Court of Justice?
THE CASE
The answer is “sometimes” or “maybe.”
The Ontario Court of Appeal recently reviewed this question and provided some useful guidelines in J.N. v. C.G., a dispute between parents over whether their children should be vaccinated.
Each party attached to their affidavit printouts from the internet which they wish to rely upon as expert evidence to support their position. The father relied upon information from Health Canada and the Canadian Pediatric Society. The mother relied on information which mostly cast doubt on the importance and safety of the vaccine including various medical articles. Both parties wished the motions judge to consider this unsworn material.
The Superior Court motions judge found in favor of the mother, refusing to take judicial notice of the efficacy and safety of the vaccine because, in his view, the available information about it was a moving target and that there was no consensus as to its safety and effectiveness.
The Court of Appeal disagreed. They gave several reasons for doing so, in the course of which they considered the use of the internet-based information attached to the affidavits. They also noted that several courts have taken judicial notice of the safety and effectiveness of COVID-19 vaccines.
Although the Court of Appeal stopped short of saying that this was the appropriate course of action for every case, they did say that the judge made an error in not considering government approval relevant evidence. They expressed concern that that, as suggested in an earlier Superior Court decision, if official advisories were excluded from the assessment:
the court will be left in most cases with whatever random information the parties are able to download from the internet. The court often lacks the expertise or the resources to assess this information….The point being that internet downloads are simply not reliable in many instances, particularly when contrasted with public health advisories.
Reliability, together with relevance, are the elements for admissibility in the 21st century. We have moved past narrow formalities to try to allow the best evidence to be before the court.
Also, reports of public officials, such as Health Canada, are admissible as public documents, and assumed to be true (unless there is better evidence to the contrary).
Prior decisions have allowed internet evidence, where it comes from a well-known organization (such as the Canadian Pediatric Society), and the information is capable of verification. This contrasts with the mother’s internet printouts, which were questionable and unreliable with no independent indication that they were reliable or based on expertise.
Information obtained from the internet may be admissible if it is accompanied by indicia of reliability, including, but not limited to:
- whether the information comes from an official website from a well-known organization;
- whether the information is capable of being verified; and
- whether the source is disclosed so that the objectivity of the person or organization posting the material can be assessed.
That alone does not qualify it as expert evidence. The author must be shown to have credible expertise in the area.
Even if internet evidence from dubious sources is admitted as evidence, in the absence of independent indicia of reliability, it should receive no weight in the decision making process.
TAKEAWAYS
- Internet evidence may be admissible in court;
- It should be attached to an affidavit that explains the sourcing (or through a witness at trial);
- Information from reliable sources will be preferred;
- Information that may not be reliable should be given little weight; and
- Normal principles on expert evidence apply generally, recognizing that they differ on motions as compared to trials.
WHAT WEILERS LLP CAN DO TO HELP YOU
Junk evidence is junk. At Weilers LLP, we know the difference between junk evidence and reliable evidence. We will bring that expertise into play as we work with you to identify and locate reliable evidence, whether from witnesses, the internet, or other sources.
If your case is not about junk, why rely on junk evidence? Give Weilers LLP a call and see if we can help you.