Assessing and searching for evidence and facts constitute a significant part of lawyers’ roles in representing clients. While litigators probably utilize these functions much more intensively than do solicitors, it is likely a matter of degree and extent.
Since use of Google and other search engines is prevalent in our society, I have often wondered if Canadian courts normally admit and rely on search engine results.
Generally, the law relating to the admissibility of electronic records in criminal and civil proceedings is governed by legislation. In matters where Parliament has jurisdiction, the Canada Evidence Act applies. In matters where each respective province’s legislature has jurisdiction, comparable provincial legislation applies. These statutes contain provisions relating to the admissibility of business records, all manner of electronic records, the “best evidence” rule, and the like.
Specifically, how are search engine results treated and are their contents routinely accepted by courts, and typically in what circumstances?
It seems that normally in civil proceedings, evidence about search engine results should not be admitted into evidence as a matter of course.
For example, in Williams v. Canon Canada Inc., involving a class action certification motion in the Ontario Superior Court, one of the parties sought to admit expert evidence based on its analysis of the frequency that a certain term appeared in a Google search.
After reviewing the opposing party’s expert report objecting to this method, Justice George Strathy, as he then was, held that “[t]here is no evidence that one can extrapolate factual conclusions from the number of occurrences of a particular search phrase on Google.”
Strathy held that expert evidence that was based on an analysis of the frequency of a particular term was inadmissible.
But that is different in substantive disputes that inherently rely on public perception and confusion, such as intellectual property and advertisements.
In Islamic Society of North America - Canada v. Bank of Montreal, the Trade-Marks Opposition Board considered extensive evidence relating to the use, frequency, and meaning of the word “halal,” as well as other words and concepts associated with this word in Google and other Internet search engines.
Relying on such and other evidence, the board ultimately allowed the Bank of Montreal’s application to register the trademark “Halal” with respect to mutual fund and related services, over the objection of the community-based Islamic Society of North America – Canada.
Similarly, in Private Career Training Institutions Agency v. Vancouver Career College (Burnaby) Inc., at issue was a private college’s use of search engine advertising. The British Columbia Court of Appeal upheld a motion judge’s decision to dismiss an injunction application that a private career training regulatory body brought against a private career training college. Both the motion judge and the Court of Appeal considered the search engine evidence on which the parties relied in support of their positions.
Another area where search engine activity appears relevant is in criminal or quasi-criminal matters, such as provincial security commission proceedings, with respect to searches that an accused conducted, rather any search engine results, where those searches themselves were relevant to the proof of an offence or another issue in the proceeding.
For example, in Re Suman, (2012), a panel of the Ontario Securities Commission relied on extensive evidence relating to Internet searches that the accused conducted on various search engines, including Yahoo Finance and Google.
Quite differently from a typical search engine result are searches relating to the distance between locations or other information about a property, such as those provided by Google Maps and MapQuest.
In R. v. Calvert, an accused was convicted of driving while over the alcohol limit (commonly referred to as “over 80”). The trial judge conducted a Google map search on his own initiative to refute a defence submission about how long it took the arresting officer to reach the police station from the scene of the arrest.
After losing an appeal, the accused sought leave to appeal his conviction to the Court of Appeal for Ontario on the basis of the trial judge’s Google map search. The appeal court dismissed the leave application and upheld the trial judge’s decision and his Google map search.
Among other things, there was evidence that the issue of judicial notice was put before the trial judge. The Court of Appeal held that “the issue of judicial notice having been raised, the trial judge was entitled to refer to Google maps for the purpose of ascertaining the distance between the scene of arrest and the police station.”
In the 2014 Ontario Assessment Review Board decision of Tocheri v. Municipal Property Assessment Corp., Region 32, the Municipal Property Assessment Corp. relied in support of its valuation report on, among other things, a Google map of the subject property. The board found that the Google map was the “best evidence” and relied on it to estimate the percentage of useable land.
While generally speaking it may be inadmissible, in the appropriate cases and when used and presented in the right manner, there is certainly a case to be made for reliance on search engine results. Happy Googling, Yahooing, Binging, or DuckDucking. . . .