Technology and the rules of evidence: part 1

By Kirsten McMahon, Associate Editor

In the first instalment of a series exploring the impact of technology on rules of evidence, Toronto family lawyer Gary Joseph explains why it’s important to focus on the underlying principles of the rules rather than their technicalities.

Social media sites and other communicative tools have increased — in both number and variety — creating an immense amount of evidence which must be understood and utilized in order to properly serve a client’s interests, Toronto family lawyer Gary Joseph tells

Family law, in particular, exists at the crossroads between the daily lives of parents, spouses and children, and the law that governs those relationships upon separation. As a result, he says technology not only streamlines the process of litigation, it documents the personal interactions that could once be recounted only through viva voce evidence.

“If used properly, this vast new source of information can be extremely influential in family litigation, especially so when a party is the unwitting author of evidence which impugns their own positions,” says Joseph, managing partner with MacDonald & Partners LLP.

He says case law is filled with examples of new digital evidence relied upon to resolve substantive issues — from a Twitter feed proving that a parent engages in a pattern of excessive consumption of alcohol, to LinkedIn and Facebook profiles serving as a basis for the imputation of income.

Joseph shared some of these examples in his presentation at the recent Federation of Law Societies of Canada 2018 National Family Law Program in Vancouver, British Columbia, noting that this new world of electronic evidence is only as valuable to the family law practitioner as it is admissible.

“Passing that threshold of admissibility requires the application of ancient rules of evidence,” he says. “It goes without saying that the authors of our rules of evidence never envisioned having to decipher the meaning of an emoji.”

Given the potential complications posed by new electronic and social media evidence, Joseph says it's more important than ever for litigators to have a solid understanding of the rules of evidence.

While the rules can be quite complex, he says they are best understood by reference to their underlying principles, namely to ensure that all relevant evidence is before the court, subject to certain exclusionary rules, and to ensure the process is fair and efficient for all parties.

“It is particularly important to understand the purposes of these rules if the impact of new technologies on their operation is to be properly understood,” Joseph says.

He notes that while the application of ancient rules to material obtained through modern technologies may seem ominous at the outset, this task is far from insurmountable.

“By focusing on the underlying principles of the rules of evidence rather than their technicalities, they can be more readily applied to new material and new problems,” Joseph says.

“Provided that those in the legal profession fulfil their obligation to understand both the rules of evidence and the new technologies used by their clients, the rules should solve more problems than they create,” he adds.

Stay tuned for part two where Joseph will provide an overview of the rules of evidence.

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