Trial by social media: Court struggles under weight of 'Freedom Convoy' evidence

OTTAWA -

As thousands of demonstrators clogged the streets around Parliament Hill in early 2022, many of them had phones in hand, taking video of the different scenes around them for almost three weeks.

For some participants, the "Freedom Convoy" protests had a festival-like atmosphere. For those who weren't part of the fun, it felt more like an occupation.

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And for millions watching online, the massive demonstration played out online, often in real time, through social media posts, videos and livestreams.

More than a year later, lawyers are trying to use those loud and sometimes chaotic digital posts in a courtroom that was very much designed in the analog era.

The second week of the criminal trial for two of the convoy's most prominent organizers has been slow-rolled by issues related to social media evidence, both from a legal perspective and a practical one.

The disconnect is emblematic of some of the problems with trying cases in the social media age.

There are extension cords taped to the floor of the tan-coloured courtroom in the basement of the Ottawa courthouse, which was built in 1986.

They connect to large TV screens that are wheeled in and jerry-rigged to lawyers' laptops as they try to display Facebook posts and TikTok videos to make their case. Justice Heather Perkins-McVey had to request a larger monitor for the trial, which has so far featured more than 90 exhibits.

While the sheer volume of social media evidence in this case is unusual, Osgoode Hall law professor Lisa Dufraimont said this is an issue the courts are dealing with more and more as these platforms become the dominant way we communicate. The same goes for digital communications, such as text messages.

"It becomes, really, a resource problem for judges and lawyers to try work through."

In the case of Tamara Lich and her co-accused, Chris Barber, the court has been hearing evidence from Ottawa police officers whose sole job it was to watch months' worth of footage from the protest, ranging from video captured by police body cameras to material posted by protesters and witnesses.

Gathering the video is just the first step. Sifting through it all to determine what is relevant to the case, and what is the best available evidence, takes a great deal of time for legal teams.

The Crown must decide what it will use to prove its case and then hand that material over to defence as part of disclosure.

"It isn't nicely, neatly organized for you to figure out what's important and what isn't, which takes quite a bit of time to go through," said Eric Granger, a lawyer representing Lich in the criminal trial, about social media evidence in general.

In this particular case, disclosure of digital evidence has already threatened to send the proceedings "off the rails," Perkins-McVey has said.

During the first week of the trial, Barber's lawyer, Diane Magas, had asked the Crown to whittle down the massive number of chats gleaned from her client's phone to just those that would be used in the case. But at the end of that week, Magas dropped two large binders of printed messages onto a table in front of the judge with a heavy thud, prompting Perkins-McVey to call a recess to settle herself.

Chris Barber speaks with his lawyer Diane Magas as he walks to court with his wife on the second day of the trial for "Freedom Convoy" organizers Barber and Tamara Lich, Wednesday, September 6, 2023 in Ottawa. (THE CANADIAN PRESS/Adrian Wyld)

The rules for admitting social media content into evidence were created long before these digital artifacts even existed.

"Courts prefer to have witness evidence in the form of a live body sitting in the courtroom on the witness stand, describing things that they've seen," said Granger.

He said social media "gets us into a fairly complicated area of law" regarding hearsay, or second-hand, evidence.

Screen shots of social media content and messages pose problems, too, because they raise questions about whether the evidence has been altered.

Once evidence is authenticated and deemed admissible, lawyers must ensure everyone in court -- especially the judge -- knows what it is.

"When it comes to understanding how a platform works, they may need to actually hear evidence about that from a witness," Dufraimont says.

And with a generation of judges for whom some aspects of the internet may still be novel, "trying to take them to the next level of understanding how social media sites work can be a bigger challenge," Granger said.

"It's a fine balance between needing to go through things thoroughly ... without insulting the judge."

On Thursday, Granger guided the court through the anatomy of the "Freedom Convoy 2022" Facebook page.

He asked the police officer on the stand to confirm the meaning and significance of the date on each post, how comments work, and how to determine who wrote it.

Granger, the witness and the judge went back and forth over the details, such as how to tell if there's a link in the post, which posts are reposts, and how to tell a recorded video from one that was streamed live.

The Crown went through a similar exercise as it took the court through a 212-page screen capture of the Facebook group.

At one point, prosecutor Tim Radcliffe pointed to symbols at the end of the text in a post. "I think those are emojis," Perkins-McVey said, stating what may seem obvious to a frequent social media user for the court's written record.

The time all of this takes up in court can be a problem for the entire legal system, but the problem may improve as the players in the courtroom become more familiar with the technology.

"It just really brings home how different generations have different understandings of everything," said Hannah Drennan, one of the younger lawyers on Lich's defence team.

"I know exactly what it means when something was live or when something was reposted on another page and so on, but it's not necessarily the same level of understanding for everybody in the courtroom."

This report by The Canadian Press was first published Sept. 16, 2023.