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How can defence make social media their friend?

|Written By Glenn Kauth

While Canadians typically think of electronic evidence as something that normally helps the interests of the state in law enforcement matters, it can also help people defending themselves in such cases and the lawyers representing them.

That was a key message during the Criminal Lawyers’ Association conference in Toronto in late November. The conference focused on the role of social media in criminal matters and brought home the point that it can help the defence as well as the Crown.

“We have to accept the fact that most clients, witnesses, and even lawyers do not pre-emptively filter social media with an eye to future litigation,” defence lawyer Sean Robichaud told the conference during his session introducing social media.

Robichaud, an active social media user, predicted “profound changes in the way we practise criminal law” and noted police are already very active in that sphere. “They’re conscious of it and we as defence lawyers need to be conscious of it because it’s going to be more and more prevalent in our courts,” he said.

While social media evidence often helps Crown prosecutors, it can also contain exculpatory information as well, Robichaud noted. That’s why one of the first things he asks clients is whether they, the complainants or other witnesses are on social media web sites such as Twitter. It’s important to get that information immediately, he said, adding lawyers can then reach out to witnesses to find out what they saw and also access location data. He pointed out, for example, that one of the first tweets about the 2012 shooting at Toronto’s Eaton Centre was from someone tweeting as the events unfolded.

“Importantly to us, it’s admissible evidence,” said Robichaud.

But as other speakers at the conference pointed out, social media is a complex area when it comes to the potential advantages for those accused of crimes. Criminal defence lawyer Frank Addario, a former president of the CLA, noted digital technologies have been a windfall for law enforcement. “The witnesses and individuals that we are dealing with are leaving electronic footprints. . . . The effect is to create a bonanza for the enterprising police officer,” he told the conference during a panel with two former CLA presidents on upcoming constitutional challenges.

In a paper accompanying the conference session, Addario noted the courts have released a slew of high-profile recent rulings on some of the privacy interests in that information. Among them was the Supreme Court case of R. v. Morelli, which Addario said was the first case in which the top court recognized powerful privacy interests in digital data. After that came R. v. Cole, a case that found a reasonable expectation of privacy in a computer owned by an employer. This year, of course, saw the high-profile case of R. v. Spencer in which the top court found a privacy interest in an Internet protocol address.

The cases, of course, have big implications for defence lawyers when it comes to potential breaches of s. 8 of the Charter of Rights and Freedoms that may affect their clients’ cases. “A central theme that emerges from the recent cases is that courts are more concerned with the manner in which digital devices are used than in technological or legal formalism,” Addario wrote in his paper for the conference.

“Rather than focusing on technicalities such as who owns a computer or the terms of service contracts, courts have generally focused on the bigger picture: whether there is a societal consensus that something is sufficiently private so as to fall within the class of information at which s. 8 is targeted,” he added.

“Defence counsel should tailor their arguments accordingly.”

Besides questions about whether police can search a device such as a smartphone, there are also issues around the extent of any authorized searches, according to Addario. “It’s a question of asking them not to go through all of the drawers in your house when they’re looking for a stolen snowmobile,” he told the CLA conference on Nov. 28.

So there’s room for defence lawyers to proactively make suggestions about search protocols, he said. “Data range and keyword search restrictions are appropriate in many cases,” he said.

“The search should exclude classes of files that are highly unlikely to contain relevant evidence,” he added.

Addario also echoed Robichaud in noting the ways in which digital information can help defence counsel. He cited information that can help establish an alibi through, for example, locational data from cellphones; information that can help implicate third-party suspects; and police body-worn cameras. “The message is if they’re watching us all the time, then we should be the beneficiaries of it as well,” Addario told the conference.

But what about the legal mechanics of actually accessing social media information and being able to tender it in court? That was the topic of a separate session involving lawyer Susan Chapman of Ursel Phillips Fellows Hopkinson LLP and Allison Dellandrea of the Ministry of the Attorney General’s provincial strategy on Internet child exploitation. Ontario Court Justice Fergus O’Donnell moderated the panel.

There are several options for accessing social media evidence, such as Facebook posts, that’s potentially relevant to a case, the lawyers pointed out, although both acknowledged there’s not a lot of case law yet in the criminal sphere. One option, Chapman noted, is to issue a subpoena either to the witness involved or the social media site.

But Dellandrea noted it’s unclear how the issue would play out as she has never seen someone using the subpoena option. And serving production orders on social media companies, she added, can be difficult.

Dellandrea suggested the most likely option for defence lawyers, then, would be the informal route by, for example, viewing people’s public profiles. And Chapman noted lawyers can sometimes go further by befriending the person’s friend on Facebook in order to get access to online information. But are there ethical issues in doing that? Chapman said she doesn’t think so. And Dellandrea suggested that if people make their information available to a large number of online friends on social media, it should be “fair game” even if they don’t have a fully public profile. It’s an issue she noted the courts have dealt with in the civil sphere with judges finding the number of people on someone’s social media list can affect their expectation of privacy.

Besides subpoenas and informal options, the lawyers also pointed to the possibility of seeking social media information through applications for third-party records under s. 278.1 of the Criminal Code. But when it comes to tendering social media information, there can also be questions about whether it’s real or electronic evidence as well as the issue of authenticity. As the lawyers pointed out, the courts have differed on some aspects of this issue. In the New Brunswick case of R. v. So, the court considered photographs of a complainant’s computer screen showing a Facebook conversation as well as printouts of five screen captures. While the court found they were electronic documents that required authentication as per the Canada Evidence Act, it ultimately determined the screen printouts were authentic and admitted them as evidence.

While that case set a relatively low threshold, an Ontario Court dealt with a related issue in R. v. Andalib-Goortani. When the Crown sought to introduce a picture posted anonymously on a web site, the absence of metadata showing the underlying information about the file created doubts about whether someone had altered it. Chapman called it a “go-to” case for the defence.

Either way, it’s clear the issue around social media in criminal cases is a developing area. While O’Donnell said “there’s a huge orchard of evidence out there that’s just sitting there,” he said few lawyers he sees in court are taking advantage of it, even when it comes to simple things like using Google Street View to show the scene.

For Robichaud, that needs to change. “Whether you like social media or not, it’s happening,” he told the conference.

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