Back a few months ago, we covered a case where the Ontario Court of Appeal essentially rapped the knuckles of the famed Justice Pazaratz in a motion ruling he gave in a COVID-19 vaccine case.
The knuckle-rapping related to how Justice Pazaratz mis-considered the evidence put forward by each of two parents, who were in dispute over which of them should have decision-making authority over whether to vaccinate their child.
As the Appeal Court found, Justice Pazaratz seemed to wholly discount the father’s Health Canada evidence and case law from the internet, concluding that the “allegedly debunked theories” on the benefits of vaccines had never been properly considered or tested. He wrongly concluded the current information about vaccine safety and effectiveness was a “moving target” with no consensus. Conversely, Justice Pazaratz blatantly favoured the mother’s expert evidence without giving it much objective and science-based scrutiny.
After condemning Justice Pazaratz’s approach, and then reviewing the accepted Health Canada information and other evidence itself, the Appeal Court ultimately gave decision-making authority to the father. (And incidentally, the mother applied for permission to appeal that decision to the Supreme Court of Canada).
This case is noteworthy because it illustrates a few important things about Family Law evidence that can be unclear – especially to self-represented litigants. Unvetted web-based sources are a particular quagmire, and can prompt many questions. For example:
What internet sources are reliable? Are all web-based sources considered on equal footing? Are Canadian government sources better than others? Can some information be accepted as being beyond dispute or contention?
And how do courts evaluate all this?
Some of these rules about internet sources were highlighted in several other recent Ontario decisions, one called A.V. v. C.V., and the other called Sutton v. Sutton. Based on those cases and several precedent rulings, the following principles offer a high-level summary of how courts deal with evidence in the form of material taken from the internet:
- First of all, before any kind of evidence is admissible in Family Court, it must meet several threshold tests, which are well-established under the Canadian law of evidence generally. It must be:
- Relevant to the issues;
- Material, in that it has legal significance; and
- Admissible, in the sense there are no rules or principles that operate to exclude it.
- Specific types of evidence (like hearsay, fresh evidence, and opinion or expert evidence) are subject to some additional criteria.
- Respecting information obtained from the internet, it can be admissible if it is accompanied by indicators of reliability, including (but not limited to):
- Whether the information comes from an official website from a well-known organization;
- Whether the information is capable of being verified; and
- Whether the source is disclosed so that the objectivity of the person or organization posting the material can be assessed.
This means that reports from public officials (like Health Canada’s report on pediatric COVID-19 vaccines) are inherently reliable, and can be admitted into evidence for the truth of their contents. This is known as the “public document exception” to the rule against admitting hearsay evidence, and it avoids having to call public officials into court to prove their evidence each time.
There is a second evidentiary shortcut to know about, called “judicial notice”. It’s not confined to internet sources; rather, it can cover any kinds of facts as long as they are clearly uncontroversial, or are beyond reasonable dispute. It is a narrow exception to the customary rule that a party who wants to rely on certain evidence must formally prove the facts.
For a court to take judicial notice, the facts must be:
- So notorious or generally accepted as not to be the subject of debate among reasonable persons; or
- capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.
As was described in a recent criminal case called R. v. Barwis, in prior rulings the courts have taken judicial notice of the following tech-related facts:
- Technology such as the telephone, emails, text messaging and GPS navigation exists;
- Cellphones operate in the general geographic location of cell towers that receive their signals;
- The contents of a computer hard-drive can be translated into a hard-copy printout; and
- That iMessages on iPhones have a certain functionality.
The concept of judicial notice saves litigants the time and expense of collecting expert evidence on matters that are not really up for debate, and which have been long-established through common knowledge and experience, or by science.
Full text of the decisions:
A.V. v. C.V., 2023 ONSC 1634 (CanLII), <https://canlii.ca/t/jw4xm
Sutton v. Sutton, 2017 ONSC 3181 (CanLII), <https://canlii.ca/t/h3xp6
R. v. Barwis, 2022 ABQB 561 (CanLII), <https://canlii.ca/t/jshpr