In the recently released
decision of K.M. v. J.B., 2013 BCSC 2041, the Honourable Mr. Justice Butler
considered the admission of Facebook postings obtained by the wife, who had
accessed the husband's Facebook account with his password, given to her during the
parties' relationship. The Court admitted the postings, finding that the
evidence was reliable and not private, as it was broadcast to an audience who
could share the posts. The Court said:
[6] Prior to setting out the facts and
my analysis of these issues, I must provide my ruling on an evidentiary issue
that arose early in the trial. The claimant wished to make reference to screen
shots she took of the respondent's Facebook pages. The respondent took the
position that these were inadmissible on the basis they were private and had
been obtained either illegally or wrongfully. The postings showed the
respondent's activities at times when he was supposed to be exercising access
according to the interim order. The postings also contain some negative
comments about the claimant and information about the respondent's work. I
indicated to the parties I would hear the evidence to consider the question of
relevance which has a bearing on admissibility.
[7] The law regarding wrongfully
obtained evidence in family disputes was thoroughly canvassed in Mathews v.
Mathews, 2007 BCSC 1825. At para. 43, Barrow J. succinctly summarized the
proper approach to admissibility of such evidence:
From the
foregoing, it is clear there is a limited discretion to exclude relevant
evidence in this context. The judicial
exercise of that discretion involves a balancing of competing interests which
can be usefully viewed as assessing the probative value of the evidence as
against its prejudicial effect. It does
not involve the application of the Charter per se.
[8] In Mathews, the evidence was
admitted in circumstances where the father entered the mother's room
surreptitiously and removed a diary from a locked box. The court concluded the
actions of the father, while not illegal, amounted to a violation of the
mother's privacy. The evidence was admitted as it was reliable and probative
and there was no prejudice to the trial process. The existence of prejudice
created by the "odious" practice of secretly intercepting private
communications was offset by the prejudice that would arise by excluding the
evidence. The administration of justice favours the admission of probative
reliable evidence which is relevant to the best interests of the children.
[9] In the circumstances of this case,
I have no hesitation in ruling the evidence is admissible. It is relevant to
the parenting question I must consider. The postings are reliable as they are
the respondent's own comments to his circle of friends. Unlike the situation in
Mathews and other cases which have considered this issue, little prejudice
arises here from the manner in which the communications were obtained. The
respondent gave his Facebook password to the claimant when they were together.
After they separated he knew she still had it. The claimant admitted she
probably should not have been looking at his account, but he was aware she
could do so. Further, his postings were not truly private communications. They
were available to be seen by a group of friends and could have been shown to others
or passed on by the recipients. In these circumstances, the respondent had no
real expectation of privacy in his postings.
[10] There is no possible other prejudice
in these circumstances. Indeed, the interests of justice would not be served if
the court could not consider evidence which is relevant to the best interests
of C.B. Exhibits A through D are accordingly admitted in evidence.
