Wikipedia as Admissible Evidence?

For those of us lawyers who routinely use Wikipedia as a source of basic information, it may be tempting to adduce a Wikipedia printout into evidence in court. After all, Wikipedia is more complete and often more specific than other encyclopedia out there. But is it reliable? Believe it or not, this question has been considered and debated by judges on many occasions in recent years since the advent of Wikipedia in 2001.

This past summer, the Superior Court rendered judgment in a criminal law matter and specifically considered the admissibility of Wikipedia evidence. The main issue on appeal in Sanderson v. St-Bruno-de-Montarville, 2013 QCCS 3566, was whether the use of a bluetooth device while driving breached section 439.1 of the Highway Safety Code as being a “hand-held device that includes a telephone function” contrary to that section. The appellant driver sought to produce Wikipedia evidence on the functioning of bluetooth devices to counter the presumption of use contained in section 439.1 which applies when the device is a “hand-held device that includes a telephone function”. She argued that this evidence was sufficient for the court to take judicial notice of the evidence. Justice Buffoni refused this evidence as being sufficient to ground judicial notice, holding that while Wikipedia may be useful as a starting point to more reliable information, the printouts themselves did not present sufficient indicia of reliability.

Other levels of court in Quebec have similarly expressed reservations on the use of Wikipedia publications as documentary evidence, along the lines of Justice Buffoni’s statements above. The Commission des lésions professionnelles in TD Canada Trust, 2011 QCCLP 1769 did not accept a Wikipedia extract which an employer sought to produce on the definition of “vasovagal response”, a malaise which causes fainting, and which the employee had argued caused her work accident. The tribunal held that Wikipedia describes itself as a free encyclopedia which is created and edited voluntarily by anonymous contributors. The tribunal noted that it therefore has no knowledge of the author’s qualifications, and more significantly, whether this person was even a doctor. The reliability of Wikipedia was also questioned by the Conseil de discipline du Barreau du Québec in (Syndic ad hoc) c. Sproule, 2012 QCCDBQ 113, which described Wikipedia as “une source des plus douteuses”.

Despite the above decisions, Quebec courts have often accepted Wikipedia evidence and even referred to it themselves, even when it comes to very technical evidence (see e.g., Gauvin c. Vallée, 2006 QCCS 3363; Gillet c. Arthur, 2005 CanLII 37500). For instance, in Tessier c. Montréal (Service de police de la Ville de), 2011 QCCS 568, the Court applied the Wikipedia definition of “syncope” (a transient loss of consciousness). Similarly, in Boulanger c. Lucas Meyer Cosmetics Canada inc. (Unipex Innovations inc.), 2012 QCCS 3111, the Superior Court referred to Wikipedia regarding the contents of the French Commercial Code. In Centre de santé et de services sociaux de l’Ouest-de-l’Île c. R.R., 2012 QCCS 1899, the Court accepted as evidence a Wikipedia printout relating to antipsychotic medication and the side effects of such medication.

On the other hand, Federal Court case law has come to a much firmer conclusion on Wikipedia evidence, dismissing such evidence as being unreliable. In Khanna v. Canada, 2008 FC 335, an immigration case, the Federal Court dismissed Wikipedia evidence pertaining to the definition of Gotra, the system of descent in Hindu society, noting that: “Wikipedia is an open source reference that can be modified by anyone. There is minimal control over the accuracy of its content […] It was reasonable to exclude each from evidence”.

Similarly, in Sinan v. Canada (Citizenship and immigration), 2008 FC 714, the Pre-Removal Risk Assessment Officer had consulted Wikipedia publications on Turkey and the alevi religion in coming to the conclusion that the applicant and his family were not at risk of persecution or torture if they were returned to Turkey. The Court held that this source was unreliable as anyone with access to a computer can edit it, and the information contained in Wikipedia does not have the reliability of country condition documents provided by various government and established non-governmental organizations. The Federal Court stated that the use of Wikipedia evidence by the Officer was highly questionable and affected procedural fairness. As such, it concluded that no deference was due to his decision. It seems that the Federal Court has essentially rejected any use of internet encyclopedia evidence in court (see also Karachian v. Canada (Citizenship and Immigration), 2009 FC 948; Jahazi v. Canada (Citizenship and Immigration), 2010 FC 242).

Despite the few Quebec cases which have seemingly relied on Wikipedia evidence to ground certain factual conclusions, it seems that other case law in Quebec and the rest of Canada, not to mention the most basic rules of evidence, provide a good basis upon which a party could object to such evidence. Despite its usefulness to obtain quick information, Wikipedia evidence clearly does not fall squarely within the procedural rules of our system, namely those pertaining to the reliability of evidence.