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Smile, you’re on metadata
By Donalee Moulton

October 26 2012 issue

Waclaw Bugno /
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While thumbing through some vacation photographs that were being contested over their admissibility for a personal injury lawsuit, B.C. Supreme Court Justice Peter Rogers noticed something about some of the pictures.

“From what I can see of the camera that the plaintiff used to take many of these photographs (the camera can be seen in the reflection off the plaintiff’s sunglasses in some of her self-portraits), I believe it was a digital device,” Justice Rogers observed.

His eye for detail was important for, as he would note in his decision, digital cameras yield valuable information on times, dates and locations that indicate what the photographer has been up to. Collectively, the information is called metadata and it is increasingly cropping up as evidence in courtrooms across Canada — ​and, as suggested in this case flowing from a traffic accident, changing an age-old evidentiary problem.

“These data are relevant to a matter in issue in this lawsuit because they may provide information from which the camera user’s tolerance for physical activity from day to day or over several days may be inferred,” Justice Rogers wrote in Abougoush v. Sauve [2011] B.C.J. No. 1243.

Traditionally, a photograph was a picture of one point in time. It could only tell what someone was doing, or not doing, at a particular moment on a particular day. What came before or after was unknown. This uncertainty meant that even what appeared to be a damning image had little value as a piece of evidence because there was no context.

“Unless the photograph sought to be tendered into evidence actually depicts a plaintiff doing something he has said he cannot do, it can be explained away rather easily as a snapshot in time,” said Rajeev Patro, an associate with Lindsay Kenney in Vancouver.

In the case of alleged soft tissue injuries, for example, an argument is often made that an individual is able to do many of the things he or she did prior to the injury but will suffer exacerbated symptoms afterwards. Another common explanation that is often offered up is that an individual can do an activity but not at the same level or intensity as before the injury.

“Obviously, a single photograph or even a series of photographs taken on the same day are of limited, if any, evidentiary value,” said Patro. “In cases where ongoing post-concussion syndrome…and/or psychological injury is claimed, photographic evidence may be even less useful.”

Digital photography does not pose the same problem. In some cases, the metadata are enough to counter the snapshot argument by demonstrating that an activity was performed repeatedly or for a lengthy period without ill effect.

“When a plaintiff has a tendency to snap a lot of pictures, a claim of chronic fatigue or debilitating pain can be refuted if there is photographic evidence of sustained activity over a finite period of time,” Patro said.

“Similarly, a claim of depression can be challenged if there are a sufficient number of photographs of the plaintiff clearly enjoying life during the relevant period.”

As Justice Rogers observed in Abougoush: “The metadata may be relevant to the plaintiff’s ability to, for example, be active throughout a given day and then go walking on the beach in the evening, or it may be relevant to the plaintiff’s ability to spend an evening at a nightclub until some given hour, and then tolerate swimming the next morning.”

The plaintiff, who had resisted submitting the photos out of privacy concerns, was ordered to provide digital copies to the defendants.

While digital data have gained acceptance as evidence, image quality still counts.

The Supreme Court of Newfoundland and Labrador recently upheld a lower court decision that supported a respondent who had been charged with four fishing-related offences arising from the inspection of a lobster holding cage. The respondent applied to have three of the charges stayed on the basis that a poor video and photographic record of the investigation caused incomplete disclosure. He alleged a Charter breach.

“The trial judge found that the quality and quantity of the photographic and video images were not adequate preservation of the fruits of the investigation, that the failure to take better images was negligent, and that this negligence deprived the respondent of the opportunity to make full answer and defence,” Justice William Goodridge wrote in Canada v. Crane [2012] N.J. No. 318.

According to the Camera and Imaging Products Association, its members shipped more than 121.5 million cameras in 2010, up almost 15 per cent from the previous year. This boom is mirrored by a similar embracing of smartphones, which typically include a digital camera.

While it is anticipated that requests for metadata will be made more often and by lawyers on both sides, the test for document production has narrowed from a test of relevance to one focused on materiality and proportionality.

“This change in the rules as well as increasing concerns relating to the privacy of individuals in the digital age have probably tempered the pursuit of photographic evidence and metadata,” said Patro.

“Counsel, therefore, need to ask the right questions at discovery to set the groundwork for the production of metadata if they want the option of pursuing it. If they do not, when they bring the application it will be denied as being overly broad or without sufficient foundation.”

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