Evidence - Internet. J.N. v. C.G.
In J.N. v. C.G. (Ont CA, 2023) the Court of Appeal allowed an appeal from a media-notorious family law application where the trial judge allowed admission of, and gave weight to, internet COVID literature without qualifying it as expert opinion:
Did the motion judge err by accepting and relying on the respondent’s online resources as expert evidence and by finding that they raised legitimate concerns about the safety, efficacy and need for the COVID-19 vaccine?. Canada (Attorney General) v. Kattenburg
 While the parties consented to the motion judge receiving their unsworn online materials, he was not bound to admit or give it any weight. In his reasons, the motion judge writes that “at the very least, [this evidence] informs me as to the type and quality of research each parent conducted in formulating their respective positions”. In the end, he gave little weight to the materials presented by the appellant noting that “I have not been able to find any indication – in the father’s evidence or in the body of COVID vaccine case law – that allegedly debunked theories have ever been properly considered or tested. In any court. Anywhere.” He further asked, “How can you take judicial notice of a moving target?” However, he gave considerable weight to the respondent’s appended materials which he treated as “expert” evidence in support of the respondent’s position that there were too many unanswered questions about the vaccine.
 The appellant’s chief complaint is that the motion judge did not properly scrutinize the respondent’s evidence and did not consider whether any of it satisfied the threshold criteria governing the admission of expert evidence – including whether the experts were qualified, independent and unbiased: R. v. Abbey, 2017 ONCA 640, 140 O.R. (3d) 40, at para. 48. The motion judge did cite and rely on two cases: ITV Technologies Inc. v. WIC Television Ltd., 2003 FC 1056, 29 C.P.R. (4th) 182, and Sutton v. Sutton, 2017 ONSC 3181, which apply a common law test for the admission of online materials. They stand for the proposition that information obtained from the Internet can be admissible if it is accompanied by indicia of reliability, including, but not limited to:
a) whether the information comes from an official website from a well-known organization; This guidance, however, is not a substitute test for the admissibility of expert evidence, and the motion judge did not refer to any of the leading cases on the topic, including White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23,  2 S.C.R. 182. Few of the materials presented by the respondent even meet the criteria set out in the internet reliability cases cited by the motion judge. Indeed, the Federal Court in ITV Technologies stressed, at para. 18, that “little or no weight should be given” to information found online without “careful assessment of its sources, independent corroboration … and assessment of the objectivity of the person placing the information on-line”. The motion judge did not adequately heed this warning.
b) whether the information is capable of being verified; and
c) whether the source is disclosed so that the objectivity of the person or organization posting the material can be assessed.
 For example, among the documents filed by the respondent were articles from ‘Total Health’ and ‘Contagion Live’, both of which purport to be medical journals. One document is titled, “Are people getting full facts on COVID vaccine risks” which quotes one Dr. Robert Malone, who claims to have invented the mRNA vaccine. Dr. Malone is, in fact, quoted several times; the motion judge concluding that “[w]ith [Dr. Malone’s] credentials, he can hardly be dismissed as a crackpot or fringe author”. Other people cited in this article are described by the motion judge as “well known leaders in their fields” and as “qualified and reputable sources”. The difficulty is, it is not entirely clear how anyone could conclude, from what the respondent filed, that Dr. Malone actually invented the mRNA vaccine or that any of those cited in the article are “well known leaders” in their respective fields. There was no basis to draw either of these conclusions.
 As the appellant points out, one author in particular, Dr. Tess Lawrie, simply penned an open letter posted on a website called ‘The Evidence-Based Medicine Consultancy Ltd.’, which appears to be a self-publication. The motion judge’s description of Dr. Malone, Dr. Lawrie and the other authors cited by the respondent – as leaders in their fields – seems to be based on nothing more than their ability to either create a website or be quoted in one. There is no apparent or verifiable expertise.
 While the motion judge did not expressly conclude that these people are experts, his reasons make it clear that he relied on them as such. For example, while ultimately concluding that there is no clear expert opinion on the benefits of vaccination, he proceeded to refer to Dr. Malone as an “equally competent and credible medical professional”. In fact, he went one step further by writing, at para. 79, that the “professional materials filed by the mother [are] actually more informative and more thought-provoking than the somewhat repetitive and narrow government materials filed by the father”.
 In my view, the motion judge fell into error by not assessing whether each document presented by the respondent was reliable, independent, unbiased and authorized by someone with expertise in the area. Instead of engaging in an analysis of the evidence presented, he embarked on a lengthy discussion about whose materials were more thought-provoking, which has no bearing at all on whether the respondent’s materials were admissible and should be given any weight.
 The motion judge also ignored the fact that, notwithstanding the well-known side effects (which are detailed in the Pfizer Fact Sheet filed by the respondent), the vaccine has been approved for children ages 5 and older by all regulatory health agencies, including Health Canada and the Center for Disease Control and Prevention. The motion judge seemed to find justification for the respondent’s position that the children should not be vaccinated (either because the vaccine is unsafe, or because not enough is known about it) because of Pfizer’s knowledge about potential side effects, which it is required to disclose by law. By doing so the motion judge treated the respondent as an expert in assessing pharmaceutical disclosure, while essentially dismissing those who are best positioned to interpret this information, public health authorities, who know how to factor the possibility of side effects into the approval process.
 The information relied upon by the respondent was nothing but something someone wrote and published on the Internet, without any independent indicia of reliability or expertise, which, even if admissible, should have been afforded no weight at all. This was a palpable and overriding error and I would, therefore, give effect to this ground of appeal.
 Further, the materials from the Canadian Paediatric Society – attached to the appellant’s affidavit, and which state that the vaccine is safe and effective for children (and that its benefits outweigh its rare side effects) – clearly meet the criteria set out in the case law cited by the motion judge. That is to say, pursuant to ITV and Sutton, this is a well-known organization (whose objectivity and sources can be readily and easily assessed), and the information contained in its documents is capable of verification. Moreover, as the Canadian Paediatric Society is not a government agency, the motion judge should have been comforted knowing that its opinion is not formulated by a government official, or reliant only on government procured information. Unfortunately, it is unknown what role this information played in the motion judge’s analysis, because he made no mention of it. In the circumstances of this case, given the motion judge’s open skepticism of government sources, it was essential that he address it.
 The motion judge erred in failing to conduct any meaningful review of the appellant’s authorities, or the laws of evidence, in favour of the respondent’s questionable and unreliable internet printouts with no independent indicia of reliability or expertise. This was a palpable and overriding error.
In Canada (Attorney General) v. Kattenburg (Fed CA, 2020) the Federal Court of Appeal commented on the attempted use of internet and other material as evidence:
 Many of the moving parties’ proposed submissions are doomed to fail for another reason. Many rely on evidence that is not before the Court. Some of the moving parties supply us with hyperlinks to find reports, opinions, news articles and informal articles to buttress their claims about the content of international law and the illegality of Israel’s occupation of the West Bank. But as far as facts are concerned, judges can act only on evidence, matters of judicial notice or statutory deeming provisions: Canada v. Kabul Farms, 2016 FCA 143, 13 Admin L.R. (6th) 11 at para. 38; Pfizer Canada Inc. v. Teva Canada Limited, 2016 FCA 161, 483 N.R. 275 at paras. 79-80. They cannot act on the basis of personal assumptions: Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30,  2 S.C.R. 548. As well, the normal rule in judicial reviews is that evidence is to be adduced before the administrative decision-maker, not in reviewing courts: Association of Universities, above. Finally, at no time do we supplement the proper evidentiary record with whatever we can scrounge from the Internet.