A recent Ottawa Citizen column commented on an incident in R. v. Elliott, a prosecution for criminal harassment involving Twitter activity. During the trial witnesses gave conflicting evidence about the mechanics of Twitter. A savvy Twitter user would know which witness was correct, but the judge decided the fact was not proven because of the conflicting testimony. This wasn’t an important issue in the trial, but it prompted writer David Reevely to suggest that judges should “dip a toe” in social media in order to stay current with modern life.
Would it have made any difference if the judge knew which witness was right?
What if the judge had dipped that toe in Twitter and knew that a dot placed before a Twitter handle widens the audience receiving a tweet? What if any judge knows a fact that isn’t proven by the evidence in a trial? Can they use their own knowledge to resolve a factual issue or fill in a gap in the evidence?
No. In our adversarial system judges are required to decide cases on the evidence presented in court. If judges apply their own knowledge or do their own research they may deprive the parties of the chance to address that information with evidence and submissions. Judges who bring pre-conceptions to a trial may not appear, or be, impartial. They may pre-judge issues. And their information could be wrong.
So even if the judge thought he knew how Twitter works he couldn’t just rely on his own knowledge and reject the mistaken evidence.
There is, however, one rule of evidence that allows a judge to consider a fact that has not been proven - in certain circumstances.
Judges still can’t substitute their own knowledge for evidence, but they can “take judicial notice” of facts that are uncontroversial, either because they are generally accepted by informed, reasonable people or because they can be confirmed by readily accessible sources of undisputable accuracy. Facts that have been judicially noticed include things like the approximate distance between cities, the general circulation of major newspapers, that January 1, 2016 was a Friday, or that it’s dark outside at midnight in Vancouver.
Supreme Court of Canada decisions in the cases of R. v. Find and R. v. Spence elaborate on judicial notice. The Court points out that since facts judicially noticed are not proven by sworn evidence or tested by cross examination, judges must be cautious about taking judicial notice.
When it comes to facts concerning social media, the issue would be whether they meet the requirements for judicial notice. In R. v. Elliott the judge did take judicial notice of some facts about Twitter - that it “is pervasive; many famous persons tweet, and many newspaper articles and radio and television programs suggest obtaining more information on a topic by resorting to Twitter”. But he wasn’t asked to, and did not take, judicial notice of the impact of the dot.
Expert opinion evidence
In fact, in R. v. Elliott at least one witness gave “expert opinion evidence” about how Twitter works. Ordinarily, witnesses testify about facts they saw, heard, or otherwise observed. A witness who has special knowledge or expertise in a scientific or technical subject may be qualified as an expert and allowed to offer their opinion if the subject is outside the knowledge and experience of a judge or jury. The Elliott case proceeded on the basis that the mechanics of Twitter was not a matter of common knowledge, so expert evidence was offered.
In a 2014 court case called Ducharme v. Borden a trial judge had ruled that he could not give any weight to electronic media evidence (text messages, emails, Facebook messages and chats) without expert evidence about how social media works. The Manitoba Court of Appeal disagreed about the need for expert evidence, but said “we acknowledge that the technical details of how contemporary communications methods work are not necessarily matters “everybody knows” so that judicial notice can be taken”.
On one hand, Twitter’s website says it had approximately 320 million monthly active users as of September 30, 2015. But Twitter users may not represent all demographics. And all Twitter users may not know all of its complicated conventions.
So it probably wouldn’t have made any difference
Judges can not simply reject a witness’ testimony about how social media works and substitute their own knowledge. Future court decisions may show if or when judges believe that knowledge of the mechanics of social media has passed the tipping point and become so widely known that judicial notice could be taken. The Elliott and Ducharme v. Borden cases suggest we’re not currently at that stage.