MLJ Volume 36-1.pdf - Robson Hall Faculty of Law

Social Incrimination 241
prosecution, the court will usually undertake the weighing exercise from R
v Seaboyer 76 as to whether the evidence is more probative than prejudicial
(which serves to prevent inflammatory statements or embarrassing
photographs from distracting the court). When the defence attempts to
bring in social networking evidence, the main issue is whether the
evidence is relevant and probative and whether there are any rules barring
the particular nature of the questioning related to the evidence.
6. Challenging the credibility of witnesses
Attempts by the defence to introduce social networking evidence
occur most often in cases involving sexual assault, to speak to the
credibility of the complainant. It also occasionally arises in cases where the
accused claims self-defence.
In sexual assault cases, courts in Canada are constrained by Section
277 of the Criminal Code that limits “evidence of sexual reputation,
whether general or specific” concerning the complainant. 77 Similar rules
requiring the exclusion of any evidence of past sexual conduct exist in the
US. For example, in the unreported decision People v Greenspan, 78 the
court denied a request by the defence to introduce Facebook photos of the
complainant posing in a sexually suggestive manner. In State v Corwin, 79
the court prevented the defence from introducing Facebook posts by the
complainant in which she bragged about getting drunk and waking up
with bruises.
Similar limitations may occur in general assault cases. In R v Jilg, 80 the
British Columbia Supreme Court did not allow the defendant to
introduce photographs from the complainant’s Facebook page to
challenge her testimony as to the extent of her injuries from his assault at
his sentence appeal. The defendant had wished to use Facebook posts
from after the incident to minimize the severity of the injuries. The court
found the evidence was not probative of the danger the accused presented
to society. In State v Makue, 81 a Hawaiian court found that a MySpace
76
[1991] 2 SCR 577, 83 DLR (4th) 193.
77
Criminal Code, supra 44, s 277.
78
People v Greenspan, 2011 WL 809552 (Cal App 4 Dist).
79
State v Corwin, 295 SW (3d) 572 (Mo App SD 2009).
80
R v Jilg, 2010 BCSC 1476 (available on WL Can).
81
State v Makue, 2011 WL 988560 (Hawaii App).