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It is what it is…or is it?

The internet is a precarious place. We buy, we sell, we talk – and we post. And while that’s all fine and good, it isn’t without consequence. Facebook launched in 2004, and since that time Canadian Courts have addressed and analyzed evidence obtained through Facebook and other social media platforms.


Recently, in a 2-1 decision, in R. v. Martin, 2021 NLCA 1, the Newfoundland and Labrador Court of Appeal overturned a lower court’s decision deeming Facebook screenshots as inadmissible. In a 30 page decision, the Court of Appeal explained how the Provincial Court Judge (“PCJ”) had erred in their analysis of the rules of authentication in relation to the proposed electronic evidence.

The case involves allegations that the Accused, Mr. E. Martin, made threats against the Royal Newfoundland Constabulary (police), via pictures and written communication on Facebook. He was charged with being in possession of a knife for a purpose dangerous to the public peace, being in possession of a rifle for a purpose dangerous to the public peace, and uttering a threat to members of the Royal Newfoundland Constabulary.

The police had attended Mr. Martin’s residence one evening to follow up on a domestic disturbance complaint. The investigation went no further than a brief attendance at the Accused’s residence, which resulted in no further action being taken.

The investigation with respect to the charges in this case began when the police received an anonymous tip that the Accused had posted several pictures on Facebook indicating he planned to harm police.

It was the evening following their first visit to Mr. Martin’s residence that the police received the anonymous tip that indicated he had posted a menacing caption, directed at police, combined with photos that included firearms. The police again attended Mr. Martin’s residence, but were clearly not welcomed. They returned to the detachment and tried to view Mr. Martin’s Facebook page, but were unable to view any content. The police then contacted the anonymous tipster to ask if they would email pictures of the postings, which they did. In total, six screen shots were forwarded. The “screenshots” depicted an individual in various poses, kneeling with and holding various firearms that included a rifle and a long gun. The words “Ed’s Post” and “Ed Martin added 4 new photos” appeared as “banners” over the photos, in the typical Facebook font and symbolism.

These screenshots were at the centre of the Crown’s firearms and threats charges against the Accused. A Voir Dire was held to determine the admissibility of the screen shots. Ultimately, the PCJ declined to admit the photos as evidence, reasoning that these items had failed to be authenticated. The PCJ opined that since the anonymous tipster had not been called to give evidence, no one could testify that the screenshots were not altered or changed in anyway. The Court went further to say that there had been nothing to substantiate that the Accused even had a Facebook account, and even if they did, there was no way to determine conclusively that the Accused had been the one to author the posts depicted in the screenshots.

The Accused was convicted of being in possession of a knife for a dangerous purpose (which was found on him at the time of his arrest) but was acquitted on the charges of being in possession of a rifle for a dangerous purpose to the public peace, and uttering a threat to members of the Royal Newfoundland Constabulary. The Crown appealed the PCJ’s decision to rule the screenshots inadmissible – which brings us to the Court of Appeal’s analysis of the issue.

The Court of Appeal was thorough and careful to reiterate its explanation of a key component in their analysis: the threshold for admissibility of authenticated electronic documents under the Canada Evidence Act is low, and can be established by both direct and secondary evidence. The proposed electronic evidence must be capable of supporting a finding that the evidence sought to be admitted is what it purports to be.

The Crown submitted that the PCJ had been erroneous in ruling that the screenshots were not authenticated by the evidence adduced at Trial. At the Voir Dire, 10 witnesses, all police officers, were called including the officer who began the investigation and obtained the screenshots. This police officer testified that he was very familiar with the layout of Facebook, and the screenshots were consistent with what he knows of Facebook. While not accepted by the PCJ as an acceptable form of authentication, the Court of Appeal disagreed and suggested that the officer’s testimony was evidence that the screenshots were authentic. Further, the police officer testified about identifying striking similarities between what they saw when they were in attendance at the Accused’s home – clothing, personal items, layout of the residence – that mirrored what they had seen in two of the screenshots. The Court of Appeal found that this information aided in the authentication of the screenshots, and determined that it was not necessary to have the anonymous tipster’s testimony verifying their authenticity. No evidence to the contrary was introduced by the Defence.

The Court of Appeal stressed that authenticity does not determine authorship – meaning that although the evidence is admissible, it is not determinative of who actually authored the post. As a result of their analysis, the Crown’s appeal was allowed and the case was returned back to Provincial Court for further proceedings. As is standard practice, the Court of Appeal did not comment on what probative value the evidence may have.

The introduction of digital evidence in criminal proceedings will continue to create a myriad of issues for the courts to determine. The Charter was not written with these intricacies in mind – and the responsibility lays not only with the courts, but in the hands of criminal lawyers across the country. If your case involves digital evidence (social media postings, text messages, etc.) it is imperative that you contact experienced and seasoned counsel without delay. We are licensed to practice in British Columbia, the Yukon Territory and the Northwest Territories. 

Fake ‘til you ….get arrested

Whenever incidents relating to terrorism in Canada hit the news, the eyes of Canadians widen with revolt. Recent headlines elicited a similar response, with a healthy dose of confusion and curiosity added to the mix.  


On September 21, 2020, criminal charges were announced against 25 year old Ontario resident Shehroze Chaudhry – but not due to allegations of committing acts of terrorism. Rather, Chaudhry has been charged under Section 83.231(1) of the Criminal Code – perpetrating a hoax regarding terrorist activity:

83.231 (1) Every one commits an offence who, without lawful excuse and with intent to cause any person to fear death, bodily harm, substantial damage to property or serious interference with the lawful use or operation of property:

(a) conveys or causes or procures to be conveyed information that, in all the circumstances, is likely to cause a reasonable apprehension that terrorist activity is occurring or will occur, without believing the information to be true; or

(b) commits an act that, in all the circumstances, is likely to cause a reasonable apprehension that terrorist activity is occurring or will occur, without believing that such activity is occurring or will occur.

Chaudhry was a frequent guest on an award winning New York Times podcast known as “Caliphate”. He spoke, in gruesome detail, of his time as an ISIS executioner in Syria, among other things. But the charges levelled against him assert that his personal experiences as an ISIS soldier are fabricated.

While the NYT claimed to have verified his role in ISIS, he gave conflicting accounts to CBC, even going so far as to say he would take a polygraph to prove he had never killed anyone. He likely thought this would absolve him any criminal liability relating to terrorism offences in Canada, but the charges against him refute this misconception.

The details released from the police don’t specify if any other person was harmed or killed due to the alleged yarn by Chaudhry, but they will play a determinative role if he is convicted. The sentences range from a fine and imprisonment in a provincial correctional institution if prosecuted summarily, to life imprisonment should Crown proceed by indictment.

Chaudhry’s case demonstrates that Canadian jurisprudence condemns all activity relating to terrorism – whether it’s the real deal or not.

Prosecuting hate in Canada: Why, How, and When

Section 2 of the Canadian Charter of Rights and Freedoms grants all Canadians the fundamental right of freedom of expression – but as one young man in Markham, Ontario learned this week, the Charter also permits the enforcement of reasonable limits on expression.

 


18 year old Tristan Stronach, a grade 12 student, was charged under section 372(2) of the Criminal Code – making indecent communications – after his instructor had to conclude an online lesson after Stronach allegedly made racist remarks about the black community. The nature of the alleged comments, while not described specifically, has caused some to ask: why isn’t he being charged with a hate crime?

The answer is: because there is no specific “hate crime” offence in the Criminal Code.

Section 372(2) of the Criminal Code reads as follows:

Indecent communications

(2) Everyone commits an offence who, with intent to alarm or annoy a person, makes an indecent communication to that person or to any other person by a means of telecommunication.

“But what about hate speech?”

Section 319(1) of the Criminal Code reads as follows:

Public incitement of hatred

319 (1) Everyone who, by communicating statements in any public place, incites hatred against any identifiable group where such incitement is likely to lead to a breach of the peace is guilty of:

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

 Wilful promotion of hatred

(2) Everyone who, by communicating statements, other than in private conversation, wilfully promotes hatred against any identifiable group is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or

(b) an offence punishable on summary conviction.

While it has been made clear that the allegations relate to racist comments towards a single identifiable group – the black community – charges under this section were likely not approved because the evidence is unable to support a conviction. The comments were not made in a “public” place, and while they were made in the virtual presence of a group of individuals, they did not promote hatred – i.e.,  the comments weren’t made in such a way that they would result in other individuals following suit and creating a breach of the peace as a result.

Notwithstanding the above, if the accused is convicted of making indecent communications, the court will consider to what degree bias, prejudice, or hate played a role. These are aggravating factors that could result in a harsher sentence. Through this legislative structure, these aggravating factors can be considered for a variety of offences – assault, theft, murder, and so on.

As Canadians, we are very fortunate to live in a country that allows us to speak, move, and exist freely – but cases like this are a reminder that equality reigns supreme.

6 Years Later

It has been six years since Matthew de Grood was charged with the murders of five young people at a house party in Calgary, Alberta, and four years since he was found to be Not Criminally Responsible for those offences.

It was concluded that de Grood was suffering from delusions, attributed to undiagnosed schizophrenia, when he caused the deaths of five schoolmates from a local university. He has been in a secure psychiatric facility ever since.

As we have discussed in previous posts, a finding of NCR is neither a determination of guilt, nor an acquittal. It is the beginning of alternative proceedings, which ultimately seek to determine if/when an Accused person can be released back into the community. Like all individuals found NCR, de Grood is required to appear before the Review Board to assess his progress, and to evaluate what freedoms, if any, he may be granted as a result of said progress.

Back in 2016, the Crown suggested it would be making an Application to seek a “High Risk NCR” designation for de Grood. Had this designation been imposed, his appearance before the Review Board would have been extended to take place every three years instead of annually. However – it appears that the Application was never made. This was likely due to the fact that the relevant legislation – the Not Criminally Responsible Reform Act – did not go into force until July 11, 2014, nearly 3 months after the offences took place. As such, the law could not be retroactively applied to de Grood’s case.

At his recent hearing, de Grood’s counsel spoke of the progress he has made during his time at the psychiatric facility. He has been afforded the opportunity to spend the night at his parent’s home on several occasions, taking hospital transportation to and from medical appointments, and volunteering with Meals on Wheels. His counsel submits that de Grood should be granted an absolute discharge due, in part, to the progress he has made with his mental health issues, including being cooperative with taking his medication – and recognizing the devastating consequences that would come as a result of not taking it. He has also demonstrated a high level of remorse for his actions.

Defence counsel further acknowledged that de Grood’s case is extremely high profile. There are concerns regarding the public’s reaction to seeing him on public transit, and how he may face serious adversity in transitioning to a group home.  

The Review Board reserved its decision, and accordingly, de Grood remains in a psychiatric facility with heavy restrictions on his freedoms.

Body Worn Cameras: What’s The Hold Up?

Over the last couple of months, there has been outcry from the public urging the use of BWC’s (Body Worn Cameras) for Canadian law enforcement. Although initially in response to the growing unrest relating to police brutality in the United States, there are echoes of abandoned intentions from Canadian officials dating back at least a few years. 


Back in 2015, the Office of the Privacy Commissioner of Canada (“OPCC”) issued a publication regarding the use of BWC by police, in collaboration with privacy agencies in Alberta, New Brunswick and Quebec. The remaining Canadian law enforcement agencies from other provinces and territories acted “in consultation”.

For reference: according to the CBC, there were a total of 2 incidents involving the death of individuals at the hands of law enforcement in New Brunswick between 2012 and 2014, 12 incidents in Quebec, and 14 incidents in Alberta. Interestingly enough, British Columbia (on par with Quebec at 14 deaths) and Ontario (with the highest rate of police violence resulting in death in the country at 25 deaths between 2012 and 2014) were only acting in consultation.

The report hails the effectiveness of BWC to capture high quality images, videos, and audio recordings – so effective, in fact, that the OPCC had grave concerns regarding their ability to capture material that could jeopardize the privacy of innocent and uninvolved bystanders.

The report goes on to tout the value of BWC for evidentiary purposes, including analytics so sophisticated that the material obtained would likely be suitable for biometric comparison – aka, facial recognition

There is no arguing the fact that the use of BWC by police has implications for the privacy of citizens in their everyday lives – especially since once fitted, citizens would likely expect on-duty officers to have their devices on a continuous basis as opposed to intermittently.

Benefits of BWC include the ability to review interactions between police and the public, recording communications between the police and suspects in the course of an investigation, identifying potential witnesses, and of course recording interactions between police officers. Many criminal cases involve evidence obtained through the use of dash cams, which provide audio from inside a police cruiser and video from the perspective of the driver. The effectiveness of this technology loses value when the investigation takes place outside of a police vehicle, as the audio often fails to capture intelligible communications between police and a suspect, or between officers themselves. Although the dash cam is kept running, the audio portion is often useless when the interactions between police and a suspect take place outside the vehicle, and the windows of the police cruiser are closed, or if the police/suspect leave the immediate area where the audio is successfully captured.

The report indicates that while continuous recording would undoubtedly provide a greater level of accountability for the actions of police, the threat to personal privacy reigns supreme:

From an accountability perspective, continuous recording may be preferable because it captures an unedited recording of an officer’s actions and the officer cannot be accused of manipulating recordings for his or her own benefit. However, from a privacy perspective, collecting less or no personal information is always the preferred option”

In 2014, the Edmonton Police concluded a pilot project regarding the use of BWC by its officers. The conclusion?:

“The cameras had no effect on police use-of-force incidents and said there was no statistical difference in resolving police complaints”

According to an analysis done by CBC, there were a total of four deaths between 2012 and 2014 relating to officers of the Edmonton Police Service. By comparison, there were 9 deaths in the same period relating to officers of the Toronto Police Service. The results of the Pilot Project may have seen different results in a different jurisdiction.

The Edmonton Police explained that in addition to being ineffective to expose cases of police misconduct, the related expenses were simply unrealistic. Perhaps surprisingly, it’s not the cost of the devices themselves, but the expense to store and manage all of the material collected: somewhere between 6 and 15 million dollars over five years, which also includes hiring personnel qualified for the job. 

Finding the balance between accountability, transparency and oversight of police against the protection of privacy for Canadian citizens is a legitimate and profound task – one that cannot be taken lightly. As the calls for BWC in Canadian law enforcement grow louder, and as Canadians revisit the reality of what it is to be privileged in this country, we can only hope that the values of dignity and equality are recognized as being more valuable than the cost of the equipment that very well could save lives.

Systemic Racism, eh?

 “Systemic racism is so rampant in the United States, I’m from Canada so I can’t even imagine what that must be like!”
“Police brutality in the US makes me proud to be Canadian”

The two statements above reflect a dangerous and widespread misconception held by many Canadians as they observe growing unrest in the United States:

“Deaths of minorities at the hands of law enforcement just isn’t an issue here”

Of course, nothing could be further from the truth.

Systemic racism exists in institutions across Canada – and an analysis of police brutality against minorities performed by CBC reveals some startling data.

Between 2000 and 2017, CBC was identified 461 fatal encounters between law enforcement and civilians. The RCMP– Canada’s largest and only federal police force – is responsible for the highest number of incidents at 118 casualties, followed by the Toronto Police Service at 52, and the Service de police de la Ville de Montreal at 32. The data demonstrates that these occurrences continue to rise steadily across the country.

When looking at the study, it is obvious that Caucasian individuals represent the largest number of victims per ethnic group, composing roughly 43% of all casualties identified. They also represent nearly 80% of Canada’s total population.

Indigenous victims represent roughly 16% of all casualties identified, but account for less than 5% of Canada’s total population.

Black victims represent roughly 10% of all casualties identified, but account for less than 3% of Canada’s total population.

22% of the victims were unable to be identified by ethnicity.

These facts are alarming and highlight a trend of violence by law enforcement against identifiable minorities. Aggravating circumstances further, it is estimated that mental health and substance abuse issues afflicted approximately 70% of the 461 victims.

The data further reveals that the majority of these occurred in urban areas with diverse cultural communities – not within areas densely populated by minorities. What this means is that of the percentage of the 461 fatalities that involve people of color is grossly disproportionate to the overall population of the areas affected.

Gun related deaths accounted for over 71% of the 461 fatalities, use of restraint at just shy of 16%, physical force at 1.3%, use of an intermediate weapon (a tool not designed to cause death with conventional use, such as a baton) at 1.1%, and “other” accounting for 10.1% of deaths.

Perhaps most shocking of all is that these statistics have not been compiled and presented by the organizations with the most reliable sources of information – the law enforcement agencies themselves.

The analysis conducted by CBC provides a glimpse into the systemic racism that is alive and well within law enforcement agencies across the country, but it hardly tells the entire story.

The data relates only to fatalities – it does not represent the wrongful arrests and prosecutions of minorities in Canada, the disproportionate sentences that are imposed, or the loss of dignity and liberty. 

It does not represent the interactions that don’t result in an arrest or charges, nor does it represent the victims of racism and bias who will never have the opportunity to tell their stories.