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Chris Barber (right) is represented by attorney Diane Magas (left). (Archive photo)
The Canadian Press
As protesters occupied the streets around Parliament Hill in Ottawa in the winter of 2022, many of them immortalized the event by taking photos or filming on camera. help from their cell phone.
Some then distributed the images on social networks.
And more than a year later, lawyers are trying to use these 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 procedures were slowed down by the presentation of evidence from social networks, both on a legal level and on a practical level.
This disconnection clearly reflects the problems faced by trials taking place in the age of social networks.
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 set up near the laptops lawyers who tried to present Facebook messages or videos posted on TikTok. Judge Heather Perkins-McVey even had to request 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 uncommon. an increasingly greater challenge for the courts. Digital communication is gaining importance.
This is really becoming a resource problem for judges and lawyers, she emphasizes.
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.
You are not told what is important and what is 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 proceedings, deplores Judge Perkins-McVey.
During the first week of the trial, Diane Magas, Chris Barber's lawyer, asked to reduce 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 admitting content from social networks were written long before the existence of digital documents.
Courts prefer to hear a witness under the form of a living person behind the witness stand who can tell what they saw, Granger said.
According to him, social networks are leading the courts towards a rather complicated part of the law concerning 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 – especially the judge – understands it.
To understand how a platform works, a judge may need to have it explained to him by a witness, explains Professor Dufraimont.
< p class="StyledBodyHtmlParagraph-sc-99c8e303-4 kaAeDr">And getting a generation of judges, for whom certain aspects of the Internet remain an enigma, to understand how it works can be a big challenge, admits Mr. Granger .
It's a balance between the need to make this clear and not insult the judge.