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

242 MANITOBA LAW JOURNAL|VOLUME 36 ISSUE 1
photo of a victim holding a beer had no relevance to whether the
complainant was credible when he testified he was not drinking on the
day. There was no evidence that the photograph was taken on the day of
the assault. In a murder case, People v Mills, 82 the court prevented the
defence from introducing MySpace photos of the victim holding a firearm
in making its case for self-defence, since there was no evidence that the
defendant was aware of the photograph.
Courts have allowed the defence to introduce Facebook profile
evidence where there is particular relevance to the credibility of a witness
or to the defendant’s perception of the events. In R v Garroway, 83 the
defence was permitted to introduce evidence that a 13-year-old
complainant in a sexual interference case had lied about her age by listing
it as 18 on her Facebook profile. An Ontario court acquitted the
defendant, finding a reasonable doubt as to whether the accused ought to
have known the girl’s age. Similarly, an appellate court in the US
overturned a conviction for statutory rape of a youth under 14. The trial
judge did not permit the jury to consider applying a lesser charge after the
complainant listed her age as 15 on her MySpace account. 84
As with all evidence, any attempt to challenge the credibility of a
witness or a complainant using social networking photographs or
statements should be done while the witness is on the stand. 85 In R v
Gardiner, 86 a New Brunswick trial judge refused to allow the defence to
introduce a witness to testify that the complainant admitted to perjuring
herself in phone conversation and corroborating Facebook messages
because they did not fully raise the issue while the complainant was
testifying. Fortunately for the accused, the Court of Appeal overturned the
case on the basis that Mr. Gardiner was ineffectively defended.
It is common for the prosecution to challenge the credibility of a
defendant who chooses to testify by using their social networking profile.
As with all character evidence, this should not be used on its own, but
82
People v Mills, 2011 WL 1086559 (Mich App). (At 13, the court notes that if the
accused had been aware of the photograph, it would have been admissible to establish
a reasonable apprehension of harm).
83
R v Garraway, 2010 ONCJ 642 (available on WL Can).
84
State v Berry, 238 Or App 277 (Or App 2010).
85
The rule in Browne v Dunn (1893) 6 R 67 HL.
86
R v Gardiner, 2010 NBCA 46, 260 CCC (3d) 336.