The Jian Ghomeshi trail, as we discussed in a blog post last week, has commanded incredible media attention in Toronto and across Canada. Reporters are commenting ad nauseam not only on Ghomeshi, the celebrity focal point of the case, but also on the tactics employed by his defence team to discredit his accusers. One of the key instruments in defence lawyer Marie Henein’s attacks on the complainants has been the content of decade-old correspondence with their alleged attacker.
Credit: Jason Howie/Flickr.
“Digital debris,” as it was labeled in a February 7 article from the Globe and Mail, includes e-mails, text messages, social media posts, Foursqaure check-ins, Yelp reviews, and other digital correspondence or updates submitted as evidence in criminal and civil court cases. Digital evidence, especially e-mails and social media posts, has become increasingly relevant in trials as a growing portion of the Canadian population spends time online. In fact, tech experts and lawyers will tell you that the internet is home to an unprecedented collection of data. Further, people rarely consider the permanence of their online actions.
“There’s also a tendency for people to put in e-mail messages things that would be relatively casual that they earlier would have picked up the phone to communicate,” said internet and privacy lawyer David Fraser in the Globe article. “Picking up the phone wouldn’t have created a record, but as soon as (the recipient has) an e-mail message and they’re not inclined to delete it, all of a sudden you have a record.”
In the case of the Jian Ghomeshi trial, Henein has presented provocative e-mails sent by complainant Lucy DeCoutere to Ghomeshi hours after he allegedly choked and slapped her in 2003. While DeCoutere testified that she doesn’t remember sending the messages, similar scenarios are likely to become increasingly common. E-mail services such as Gmail, Yahoo Mail, and Hotmail offer nearly unlimited storage space, meaning keeping e-mails is often much easier than deleting them.
Similarly, corporations often keep back-ups of e-mails for years, and even when a sent e-mail is manually deleted, the sender has no guarantee that the recipient did not pass the message along to others.
“You can create a million perfect copies of an e-mail that would be pretty cumbersome to do with a piece of paper,” explained Ronald Cenfetelli, chair in management information systems at the University of British Columbia’s Sauder School of Business in the Globe article. “With e-mails, there can be ghosts or shadows that sort of reverberate out there.”
Ghomeshi’s case is far from the first example of digital evidence impacting a trial in Canada. In May of last year, the National Post profiled Sarah Tambosso, a British Columbia resident whose personal injury claim following two car accident was rejected based on social media posts showing her drinking, socializing with friends, river-tubing, and performing karaoke. She was eventually awarded $36,000 in damages, a fraction of her original claim.
On the other hand, social media evidence and similar digital debris will not necessarily impact a verdict. In a 2014 car accident trial in B.C., the judge ruled that social media posts were not enough to prove the plaintiff exaggerated their injuries.
“A snapshot does not show anything but a moment in time,” the judge ruled, “and does not disprove that the plaintiff also had many times … declined to participate in activities or felt in significant pain after trying to engage in activities.”
Whether digital evidence will play a significant role in the result of Ghomeshi’s trial remains to be seen, but social media interactions and emails will continue to gain prominence in Canadian court cases.
